AUSTRALIAN ELECTORAL COMMISSION

SUPPLEMENTARY SUBMISSION TO THE JOINT STANDING COMMITTEE ON ELECTORAL MATTERS

PETITIONS TO THE COURT OF DISPUTED RETURNS

Canberra

28 September 1999

CONTENTS

1 Introduction

2 Summary of Recommendations

3 Summary of Election Petitions

4 Proceedings in Sue v Hill and Sharples v Hill

41 The Sue v Hill Petition 42 The Sharples v Hill Petition 43 Preliminary Proceedings in the Petitions 44 Substantive Proceedings in the Petitions 45 Later Proceedings in the Petitions

5 Implications of the Sue and Sharples Decisions

51 Jurisdiction of the Court of Disputed Returns 52 Constitutional Disqualifications 53 Costs in Election Petitions

6 Proceedings in McClure v AEC and related Petitions

61 The McClure Petition 62 The Related Petitions

7 Implications of the McClure Decision

71 Senate Group Ticket Voting 72 Freedom of Political Communication 73 Class Actions in Petitions 72 Validity of Royal Assent to Bills

8 Proceedings in the Ditchburn Petitions

81 The Ditchburn v AEO Qld Petition 82 The Ditchburn v DRO Herbert Petition

9 Implications of the Ditchburn Decisions

91 Senate Group Ticket Voting 92 Full Preferential Voting

10 Summary of Outcomes in the 1998 Election Petitions

1 Introduction

11 This supplementary submission by the Australian Electoral Commission (AEC) is presented to the Joint Standing Committee on Electoral Matters (JSCEM) in response to its ldquoInquiry into the 1998 Federal Electionrdquo as advertised on 23 January 1999 in all major national newspapers and is supplementary to

bull Submission No 88 entitled ldquoThe Conduct of the 1998 Federal Electionrdquo of 12 March 1999 (volume 3)

bull Submission No 159 entitled ldquoThe Admissibility of Provisional Votesrdquo of 23 March 1999 (volume 4)

bull Submission No 176 entitled ldquoAEC Responses to other Submissions and to Hearingsrdquo of 4 May 1999 (volume 7)

bull Submission No 210 entiled ldquoFurther AEC Responses to other Submissions and to Hearingsrdquo of 23 July 1999 (volume 10)

2 Summary of Recommendations

21 The AEC makes one recommendation in this submission involving no amendments to the Commonwealth Electoral Act 1918 (ldquothe Electoral Actrdquo) or the Referendum (Machinery Provisions) Act 1984 (ldquothe Referendum Actrdquo) This recommendation is in addition to the 29 recommendations in submission No 88 the one recommendation in submission No 159 the five recommendations in submission No 176 and the three recommendations in submission No 210

Recommendation 1 That the JSCEM seek a reference to inquire into the powers and functions of the Australian Electoral Commission as expressed in Part II of the Electoral Act and Part I of the Referendum Act and the powers and functions of the Court of Disputed Returns as expressed in Part XXII of the Electoral Act and in Part VIII of the Referendum Act

3 Summary of Election Petitions

31 This submission reports on the proceedings and decisions in the nine election petitions filed with the High Court of Australia within the 40 day period after the return of the writs for the 1998 federal election under the provisions of Part XXII of the Electoral Act

32 All nine petitions have now been decided by the High Court sitting as the Court of Disputed Returns The decision in two related petitions resulted in the disqualification of an elected Queensland Senate candidate on constitutional grounds and the other seven petitions were dismissed by the Court No costs were ordered against the AEC in any of the petitions

33 A summary of the decisions in the nine petitions is as follows

bull Sue v Hill Sharples v Hill On 23 June 1999 a majority of the High Court decided that the Court of Disputed Returns had jurisdiction to hear the petitions and that Ms Heather Hill was not capable of being elected as a Senator for Queensland under section 44(i) of the Constitution The Commonwealth was ordered to pay the costs of the petitioners and the first respondent and no costs order was made against the AEC

bull On 2 July 1999 in the Sue petition the Court of Disputed Returns ordered that Ms Hill was not duly elected and that Mr Harris was elected in her place The Commonwealth was ordered to pay the costs of the petitioner the first respondent and the intervening parties in these later proceedings and in some of the preliminary proceedings No costs order was made against the Attorney-General or the AEC On 28 July 1999 in the Sharples petition the Court made similar orders

bull McClure v AEC On 24 June 1999 the Court dismissed the petition with Mr McClure ordered to pay the costs of the AEC

bull Polke v AEC Vaughan v AEC Garcia v AEC Heathorn v AEC On 23 July 1999 the Court dismissed these four petitions which were identical to the McClure petition The AEC did not seek any costs orders because the petitioners agreed not to oppose the AEC application for dismissal

bull Ditchburn v AEO Qld Ditchburn v DRO Herbert On 23 July 1999 the Court dismissed these two petitions and Mr Ditchburn was ordered to pay the costs of the AEC

34 On 11 May 1999 a further petition Rudolphy v Lightfoot was filed with the Court disputing the casual vacancy election of Senator Lightfoot in May 1997 on the basis of alleged anomalies in the Western Australian Parliament at the time

35 On 16 June 1999 Justice Gummow referred the following question to the Full Bench of the High Court which is scheduled for hearing on 18 October 1999

Upon their true construction do sections 355(e) and 358 of the Commonwealth Electoral Act 1918 render the petition (a) incompetent or (b) liable to be dismissed or (c) liable to be struck out

36 The AEC will not be providing any comment in this submission on the Rudolphy v Lightfoot petition as it is still before the Court

4 Proceedings in Sue v Hill and Sharples v Hill

41 The Sue v Hill Petition

411 On 1 December 1998 Mr Henry (Nai Leung) Sue filed a petition in the Sydney Registry of the High Court disputing the election of Ms Heather Hill of Pauline Hansonrsquos One Nation Party for the Queensland Senate at the 1998 federal election In his petition Mr Sue asserted his entitlement to vote at the Queensland Senate election and made the following allegations

As at the date of her nomination the Respondent was under an acknowledgement of allegiance obedience or adherence to a foreign power or was a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power within the meaning of section 44(i) of the ConstitutionhellipThe foreign power is BritainhellipAs such the Respondent was incapable of being chosen or sitting as a Senator

412 The petitioner Mr Sue asked the Court to declare that the respondent Ms Hill was not capable of being chosen as a Senator and was not duly elected as a Senator The petitioner also asked the Court to order the Australian Electoral Officer for Queensland to conduct a recount of the Queensland Senate ballot papers in order to find a replacement candidate to be elected instead of Ms Hill Finally the petitioner asked the Court to order that the respondent Ms Hill pay his costs

413 The request by the petitioner for a recount of the Senate ballot papers to find a replacement for Ms Hill from the candidates at the election was in line with precedent set in the Re Wood cases in 1988 which resulted in a recount of the ballot papers for Senator Woodrsquos vacated position after he was disqualified under section 163 of the Electoral Act for not being an Australian citizen at the time of his election and the election of Senator Irina Dunn of the Nuclear Disarmament Party the same Senate group as Senator Wood (see Re Wood (1988) 167 CLR 145 Re Wood [No 2] (1988) 62 ALJR 377 Re Wood [No 3] (1988) 62 ALJR 638 and for further discussion of Senate recounts see paragraphs 453 to 455 in AEC submission No 210 of 23 July 1999)

42 The Sharples v Hill Petition

421 On 2 December 1998 Mr Terry Sharples filed a petition in the Brisbane Registry of the High Court also disputing the election of Ms Heather Hill for the Queensland Senate In his petition Mr Sharples asserted his entitlement to vote at the Queensland Senate election and made the following allegations

The Respondent is by birth a British subject and under allegiance obedience and adherence to the laws of the United KingdomhellipThe respondent immigrated to Australia and has lived in Australia since that date She holds a passport as a British subject which is still currenthellipAustralian law does not recognise British subjects who are domicile or resident as citizens The respondent applied for Australian citizenship in or about April 1998

422 The petitioner Mr Sharples asked the Court to void the election of Ms Hill to order the Queensland Governor to issue a writ for an election to fill the Senate position and to order the Commonwealth to pay his costs Mr Sharples was known to be a disaffected One Nation Party member who was apparently seeking a fresh Senate election or a ldquoby-electionrdquo so as to reduce the possibility of another candidate from the One Nation Senate group replacing Ms Hill which would be the likely outcome of a recount

43 Preliminary Proceedings in the Petitions

431 On 2 and 25 February 1999 solicitors for the respondent Ms Hill Watkins Stokes Templeton filed with the Court a summons and an amended summons seeking the dismissal or striking out of the petition on the following grounds

(a) that the petition did not comply with section 355(a) and (aa) of the Electoral Act because it did not set out the facts relied on in sufficient particularity (b) that the petitioner had failed to publish the petition in the Commonwealth Gazette as required by Order 68 Rule 3 of the High Court Rules (later done and acknowledged) and (c) that the Court of Disputed Returns is not empowered to declare the respondent not capable of being elected or not duly elected

432 On 10 March 199 solicitors for the respondent Ms Hill filed a further amended summons again seeking dismissal of the petition on the above grounds but also seeking the referral to the Full Bench of the High Court a question on the jurisdiction of the Court

hellip in the event that the respondent does not establish any of the grounds in (a) (b) and (c) above the respondent seeks an order that there be referred to the Full Court the following constitutional issue

That the purported vesting in the High Court of Australia by s 354 of the Commonwealth Electoral Act 1918 of the power to try petitions and determine the validity of any election or return is contrary to the separation of powers between the Executive Legislative and Judiciary contained in the Constitution and is therefore invalid

433 At a directions hearing on 15 March 1999 before Chief Justice Gleeson of the High Court the petitioner Mr Sue was represented by Mr Stephen Finch SC the respondent Ms Hill was represented by Mr David Rofe QC The AEC represented by Mr Geoffrey McCarthy of the Australian Government Solicitor sought and was granted leave to enter an appearance as a party to the petition The AEC thereby became the second respondent to the Sue petition

434 Where the AEC is not expressly named as respondent in an election petition the AEC normally seeks leave to join as a party an entitlement provided for in section 359 of the Electoral Act in order to make submissions on the facts of the election under dispute and submissions on the appropriate relief or remedy should the petition succeed The AEC does not make submissions on constitutional issues raised in petitions as this is more appropriately for the Attorney-General for the Commonwealth who is entitled to intervene under section 78A of the Judiciary Act 1903 where constitutional issues are agitated in the High Court

435 In its amicus role in election petitions the AEC does not seek costs against other parties and does not expect costs to be awarded against it as detailed in the decision of Brennan CJ in Free v Kelly (1996) 70 ALJR 809 at 812

The Commission may be represented and heard under s 359 in at least four categories of cases cases where the Commission seeks to defend the conduct of an election or the conduct of an officer of the Commission in relation to an election cases in which the Commission intervenes for the purpose of advancing a proposition for which it seeks curial confirmation to assist it in the discharge of its statutory functions cases where the Commission adopts a partisan stance supporting one party or another and cases where the Commission merely makes appropriate reference to the Act and to authority in order to assist the Court to determine a petition

It may be appropriate to make an order for or against the Commission in the first three categories of case but in the fourth category the Commission is engaged in the proper performance of a statutory function in the public interest The appearance of the Commission in such a case ought not to enlarge the risk of costs to the other parties to the proceedings Being incidental to the proper performance of its statutory functions the cost of being represented and heard ought properly to be borne as a cost of the Commissionrsquos administration This is such a case Expressing as I do appreciation of the considerable assistance that the Commission offered ndash not least in the preparation of an agreed statement of facts ndash it is appropriate to make no order with respect to the costs of the Commission

436 At the first directions hearing in the Sue petition on 15 March 1999 Chief Justice Gleeson indicated his intention to proceed only on the single issue raised by the first respondent Ms Hill in her various summonses of whether the petition complied with sections 355(a) and (aa) of the Electoral Act in providing sufficient facts and particulars to ground the petition His Honour was critical of the petitionerrsquos general claim of a breach of section 44(i) of the Constitution which simply repeated the text of the provision without making any effort to identify what aspects were relevant or at issue and described the petition as ldquoan uncritical spray levelled at the respondent by taking the language of the statute and not bothering to work out what your case really wasrdquo (transcript 15 March 1999 page 12)

437 The question then arose as to whether the petition could be amended to delete aspects of the petition which were not properly pleaded or which the petitioner did not intend to pursue Section 44(i) of the Constitution provides three categories of disqualification (Sykes v Cleary (1992) 176 CLR 77 at 109shy111) and the terms of the petition suggested that Ms Hill was in breach of all three categories even though the only fact presented in the petition that Ms Hill was at the relevant time a citizen of Great Britain appeared to be a breach only of the second category in section 44(i) His Honour heard submissions from all parties on whether the deletion of part of a petition amounted to amending a petition which precedent case law suggested was not permissible (Nile v Wood (1988) 167 CLR 133 at 137)

438 On 19 March 1999 Chief Justice Gleeson delivered his decision on whether the petition was in compliance with section 355 of the Electoral Act and if not whether it should be dismissed or struck out (Attachment 1) His Honour concluded that the petition would have been dismissed but for the exercise of the discretionary power in section 358(2) of the Electoral Act and ordered the petitioner Mr Sue to pay the costs of the respondentrsquos (Ms Hillrsquos) costs of the application even though the respondentrsquos application for dismissal of the petition was itself dismissed The petition was allowed to proceed on the terms that the petitioner was prevented from placing any further reliance on any allegations that fell within either the first or the third categories of disqualification in section 44(i) of the Constitution

439 On the same day in further directions Chief Justice Gleeson proposed that the Sue and the Sharples petitions should be managed separately at this stage Mr Sharples who was not represented had filed his petition in Brisbane and his petition was assigned to Justice Callinan to progress the matter in Brisbane

4310 Chief Justice Gleeson then stated his intention consistent with the wishes of the parties to refer the substantive questions arising under of the Sue petition to the Full Court of the High Court pursuant to section 18 of the Judiciary Act 1903 Assuming the power to state a case His Honour directed the parties to prepare a draft case stated for the consideration of the Full Court There was general agreement between the parties that the case stated would contain a number of questions but should at least include a question as to whether the petitioner had taken all ldquoreasonable stepsrdquo to renounce her citizenship of Great Britain according to the test provided in Sykes v Cleary and a question as to whether Great Britain is a ldquoforeign powerrdquo

4311 It was indicated that it was likely that the matter would be listed before the Full Court on 11 and 12 May 1999 in Canberra The proceedings would involve consideration of a Stated Case in the context of an Agreed Statement of Facts There was general agreement between the parties that the facts would be relatively few and the parties did not anticipate any disagreement as to the facts

4312 His Honour noted tentative agreement between the parties that if the petition were successful a recount would be the appropriate remedy and that the person placed second on the One Nation Partyrsquos group voting ticket would in all probability be the person who should be declared duly elected pursuant to section 360(1)(iv) of the Electoral Act His Honour suggested that that person Mr Len Harris would have to have an interest in the proceedings and might wish to be heard The matter was adjourned with costs in these preliminary proceedings

4313 On 29 March 1999 directions resumed before Chief Justice Gleeson and the draft Case Stated in the Sue petition was settled between the parties On 30 March 1999 His Honour signed the Case Stated with the following questions being referred to the Full Bench of the High Court

(a) Does s 354 of the Act validly confer upon the Court of Disputed Returns jurisdiction to determine the issues raised in the petition (b) Was the first respondent at the date of her nomination a subject or citizen of a foreign power within the meaning of s 44(i) of the Constitution (c) Was the first respondent duly elected at the election (d) If no to (c) was the election void absolutely (e) If no to (d) should the second respondent conduct a recount of the ballot papers cast for the election for the purposes of determining the candidate entitled to be elected to the place for which the first respondent was returned (f) Save for the otherwise dealt with by order who should pay the costs of the Stated Case and of the hearing of the Stated Case before the Full High Court

4314 On 1 April 1999 a directions hearing on the Sharples petition was held by Justice Callinan in Brisbane with Mr Sharples representing himself and Mr Templeton representing the respondent Ms Hill The AEC represented by Mr Maurice Swan of the Australian Government Solicitor was granted leave to enter an appearance as a party to the petition and the AEC thereby became the second respondent to the Sharples petition Justice Callinan indicated that he was inclined to follow the same course as set by Chief Justice Gleeson in the Sue petition and asked for an Agreed Statement of Facts and a draft Case Stated from the parties The matter was adjourned to 22 April 1999

4315 In negotiations between the parties on the preparation of the draft Statement of Facts and Case Stated the petitioner Mr Sharples expressed his substantial disagreement with the Statement of Facts in the Case Stated already concluded in the Sue petition proceedings despite the respondents (Ms Hill and the AEC) expressing the view that the Statement of Facts in the Case Stated in the Sharples petition proceedings should be the same (with the omission only of a paragraph that was peculiar to the Sue Case Stated)

4316 On 22 April in directions before Justice Callinan His Honour ruled on the various points of disagreement in the draft Statement of Facts in the Case Stated between the petitioner Mr Sharples and the two respondents Ms Hill and the AEC This resulted in the addition of the numbers of first preference votes ldquoabove the linerdquo and ldquobelow the linerdquo received by Ms Hill which Mr Sharples submitted would be pertinent to his argument for a Senate ldquoby-electionrdquo or fresh election However His Honour declined to make any changes to the questions in the Case Stated that were agreed in the Sue petition proceedings

4317 At the conclusion of the directions hearing Justice Callinan directed the parties to join in the preparation of a document to reflect the various amendments as ordered to the draft Statement of Facts in the Case Stated in the Sharples proceedings and directed that the amended document be submitted to him by 27 April for certification and referral to the Full Bench Costs in these preliminary proceedings were reserved

4318 Following these proceedings the petitioner Mr Sharples wrote various letters to the other parties expressing his dissatisfaction with the proceedings and filed an affidavit with the Court (which was not served on the other parties) complaining about the conduct of the other parties in negotiations In the event Justice Callinan certified the Case Stated and Statement of Facts in the Sharples petition proceedings and the matter was listed for hearing concurrently or consecutively with the Sue petition proceedings on 11-12 May

44 Substantive Proceedings in the Petitions

441 The hearing by the Full Bench of the High Court of the Case Stated in the Sue petition and the Case Stated in the Sharples petition took place on 11-12 May 1999 in Canberra and because of the number and length of submissions was extended on the second day for another day into 13 May

442 The first petitioner Mr Sue was represented by Mr Stephen Finch SC with Ms Elizabeth Collins The second petitioner Mr Sharples represented himself The first respondent to each petition Ms Heather Hill was represented by Mr Robert Ellicott QC and Mr David Rofe QC with Mr Anthony Tudehope The second respondent to each petition the AEC was represented by Mr Maurice Swan a barrister from the Australian Government Solicitor with considerable experience in disputed proportional representation elections The Attorney-General for the Commonwealth (Intervening) was represented by the Solicitor-General Mr David Bennett QC with Mr Nye Perram and Mr Christopher Ward

443 The first day of the hearing was occupied with the first question in the Case Stated ldquoDoes section 354 of the Act validly confer upon the Court of Disputed Returns jurisdiction to determine the issues raised in the petitionrdquo Counsel for the first respondent Ms Hill submitted that the purported conferral of power upon the Court under section 354 of the Electoral Act was invalid because it contravened the doctrine of separation of powers That is the determination of disputed elections and returns is ancillary to the legislative function of the Parliament and is not a judicial function

444 It was also submitted by Counsel for Ms Hill that even if the Court had jurisdiction to try the petition its powers did not extend to ruling upon whether the first respondent was incapable of being chosen by reason of section 44(i) of the Constitution That is when hearing a petition filed under Division 1 of Part XXII of the Electoral Act the Court is limited to consideration of alleged illegal practices per section 362 of the Act and Division 1 does not confer power on the Court to hear claims in a petition of constitutional disqualification

445 It was further submitted by Counsel for Ms Hill that the Courtrsquos power to consider whether a person was qualified to be a Member of Parliament arises only in Division 2 of Part XXII of the Electoral Act by means of a question referred to the Court by resolution of the relevant House of the Parliament This is why additional powers are conferred on the Court pursuant to section 379 of the Act Counsel for the first respondent relied on the judgment of Gaudron J in Hudson v Lee (1993) 115 ALR 343 where Her Honour held that section 362 of the Act was an ldquoexhaustive statementrdquo of the circumstances in which an election might be declared invalid or void in answer to a petition filed under Division 1 of Part XXII of the Act

446 In response Counsel for the petitioner Mr Sue and the Solicitor-General for the Commonwealth both submitted that the Court should not adopt such an unduly narrow reading of Part XXII of the Electoral Act The Solicitor-General submitted that the view expressed by Gaudron J in Hudson v Lee is limited to questions of misconduct and is authority only for the proposition that misconduct is not actionable unless it finds a source in section 362 of the Act The AEC made no submissions in relation to this first question in the Case Stated

447 The question whether the Court had jurisdiction to determine whether the first respondent Ms Hill was ldquoincapable of being chosenrdquo as a Senator by reason of section 44(i) of the Constitution inevitably drew the Court into the question whether it was sitting as the High Court of Australia and thus having the jurisdiction conferred on the High Court by the Constitution or whether it was sitting as a separate statutory Court namely the Court of Disputed Returns and thus having the jurisdiction conferred on it under Part XXII of the Electoral Act

448 The second question in the Case Stated ldquoWas the first respondent at the date of her nomination a subject or citizen of a foreign powerrdquo was dealt with in two parts whether the United Kingdom is a ldquoforeign powerrdquo for the purposes of section 44(i) of the Constitution and whether Ms Hill was a ldquosubject or citizenrdquo of the United Kingdom irrespective of whether the United Kingdom is a foreign power The AEC made no submissions in relation to this second question in the Case Stated

449 There was little disagreement between the parties concerned that when section 44(i) was enacted the framers of the Constitution did not envisage the phrase ldquoforeign powerrdquo to include the United Kingdom Indeed until 1948 and the passing of the Nationality and Citizenship Act 1948 citizenship of the United Kingdom was the norm for the majority of Australians

4410 Counsel for the first respondent Ms Hill submitted that as at 1900 the phrase ldquoforeign powerrdquo did not and was not intended to include the United Kingdom and that none of the events circumstances or legislative enactments since 1900 have converted the special and unique relationship between the Commonwealth of Australia and the United Kingdom into a relationship now between the Commonwealth and a ldquoforeign powerrdquo It was submitted that the relationship was like that between a parent and a child which forever binds the child to the parent

4411 In relation to whether Ms Hill was a ldquosubject or a citizenrdquo of the United Kingdom Counsel for Ms Hill endeavoured to distinguish the Courtrsquos decision in Sykes v Cleary (1992) 176 CLR 77 on the grounds that Ms Hill was at the time of her nomination an Australian citizen This it was submitted was enough to avoid the operation of section 44(i)

4412 In response Counsel for the petitioner Mr Sue and the Solicitor-General for the Commonwealth both submitted that the United Kingdom is a ldquoforeign powerrdquo for the purposes of section 44(i) of the Constitution Counsel for the petitioner further submitted that even if the United Kingdom was not a foreign power in 1900 and even if difficulties arise in identifying the exact point in time when it became a foreign power it can nevertheless be said with confidence that the emergence of Australia as an independent nation and the occurrence of various relevant events particularly the passage of the Australia Act 1986 mean that at least when Ms Hill was nominated for election the United Kingdom had truly become a ldquoforeign powerrdquo

4413 Finally Counsel for the petitioner Mr Sue and the Solicitor-General for the Commonwealth both submitted that at the date of her nomination Ms Hill held British citizenship and had not taken all reasonable (or any) steps to divest herself of that citizenship In particular she had not made the appropriate declaration of renunciation of that citizenship as per Sykes v Cleary That is if the United Kingdom is a ldquoforeign powerrdquo within the meaning of section 44(i) then Ms Hill was incapable of being chosen as a Senator

4414 In relation to the third question in the Case Stated ldquoWas the first respondent duly elected at the electionrdquo there was common ground between the parties that if the Court found that at the date of her nomination Ms Hill was incapable of being chosen as a Senator by reason of her being a subject or citizen of a foreign power then it must follow that the first respondent was not duly elected at the election

4415 In relation to the fourth question in the Case Stated ldquoIf the first respondent was not duly elected was the election absolutely voidrdquo the parties in Sue v Hill agreed with the submission by the Solicitor-General for the Commonwealth that this question should be answered in the negative that is the election should not be declared absolutely void and a recount would be the appropriate remedy However the second petitioner Mr Sharples submitted that the question should be answered in the positive and a ldquowhole new electionrdquo should be conducted

4416 In relation to the fifth question in the Case Stated ldquoIf the election should not be declared void absolutely should the second respondent conduct a recount of the ballot papers cast for the purpose of determining the candidate entitled to be declared electedrdquo Counsel for the AEC submitted that a recount of the ballot papers for the position of Ms Hill would be the most appropriate remedy per In re Wood (1988) 167 CLR 145 Counsel for the petitioner Mr Sue Counsel for the first respondent Ms Hill and the Solicitor-General for the Commonwealth agreed with the submissions of the AEC

4417 In response to questions from the Bench Counsel for the AEC further submitted that it was highly probable that a member of the same political party as Ms Hill would be elected in her place on a recount of the ballot papers That is a recount would probably elect Mr Len Harris of One Nation in place of Ms Hill of One Nation because around 99 of electors who voted 1 for Ms Hill voted 2 for Mr Harris the second candidate on the One Nation group voting ticket Nevertheless until the recount was actually conducted this remained an hypothetical proposition

4418 In opposition to the submissions of the AEC the second petitioner Mr Sharples submitted that the Court could not be absolutely confident that the votersrsquo original intentions would be reflected by a recount given the distribution of first preferences for Ms Hill above and below the line on the ballot papers He referred also to the fact that Ms Hill was elected third in a field of six whilst in the precedent case In re Wood Mr Wood was elected last in a field of twelve He submitted that a fresh election was therefore the most appropriate remedy The Court then ordered Counsel for the AEC to provide further written submissions on the different consequences that might flow from the different order in which Mr Wood was elected in 1988 and Ms Hill in 1998

4419 The further written submissions were filed by the AEC on 18 May 1999 and showed that in its amicus role the AEC had given early consideration as to whether the election of other candidates would be disturbed by a recount if Ms Hill were to be disqualified and had concluded that this was so unlikely that their involvement in the proceedings need not be suggested to the Court The AEC further submitted that the different order of election in the Wood and the Hill cases would not change the fact that Mr Harris of One Nation would most probably be elected on a recount to replace Ms Hill In the event Mr Sharples chose to file further written submissions in response to the further written submissions of the AEC in which he endeavoured to distinguish In re Wood and further argued the case for a fresh election

4420 The sixth and final question in the Case Stated was ldquoSave for those otherwise dealt with by order who should pay the costs of the Stated Case and of the hearing of the Stated Case before the Full High Courtrdquo Counsel for the petitioner Mr Sue submitted that if the petition was successful the first respondent Ms Hill should pay his costs Counsel for the first respondent Ms Hill submitted that the Commonwealth should pay her costs because the questions raised were ldquoof great contemporary importancerdquo Alternatively it was submitted that if the petition failed then her costs should be paid by the petitioner The AEC submitted that no costs order should be made against the AEC and sought no costs order against the other parties

4421 The Solicitor-General for the Commonwealth submitted that no costs order should be made against the Commonwealth (under section 360(4) of the Electoral Act) and sought no costs order against the other parties The submission that the Commonwealth should not pay the costs of the other parties was not well received by the Bench Justice Callinan called it ldquoan extraordinary submissionrdquo

4422 Justice Gaudron cavilled at the submission by the Solicitor-General on the grounds that ldquoone half of the argument at least is concerned with matters relating to the effect of the Act ndash perhaps more than one halfrdquo and went on to say that ldquodeficienciesrdquo in the Act ldquohave been drawn to the attention of the Commonwealth in litigation for many yearsrdquo yet ldquopeople have been content more or less to leave [the Act] as it is with little thought as to how it operatesrdquo (transcript 12 May 1999 pp 65-66)

4423 The Decision in the Petitions On 23 June 1999 the Full Bench of the High Court handed down its judgment in Sue v Hill (1999) 73 ALJR 1016 and Sharples v Hill (B49 of 1998 High Court 23 June 1999 unreported) (Attachment 2) The majority of the Court (Gleeson CJ Gaudron Gummow and Hayne JJ) answered the questions in the Case Stated as follows

(a) Does s 354 of the Act validly confer upon the Court of Disputed Returns jurisdiction to determine the issues raised in the petition

Answer Yes

(b) Was the first respondent at the date of her nomination a subject or citizen of a foreign power within the meaning of s 44(i) of the Constitution

Answer Yes

(c) Was the first respondent duly elected at the election

Answer No

(d) If no to (c) was the election void absolutely

Answer No

(e) If no to (d) should the second respondent conduct a recount of the ballot papers cast for the election for the purposes of determining the candidate entitled to be elected to the place for which the first respondent was returned

Answer Inappropriate to answer

(f) Save for the otherwise dealt with by order who should pay the costs of the Stated Case and of the hearing of the Stated Case before the Full High Court

Answer The Commonwealth should pay the costs of the petitioner and the first respondent The second respondent should bear its own costs

4424 In delivering the judgment of the Court in the Sue v Hill and the Sharples v Hill petitions Chief Justice Gleeson made the following summary

In these two cases which were commenced in the Court of Disputed Returns the election of Mrs Hill as a Senator for the State of Queensland was challenged on the ground that at the date of her nomination she was incapable of being chosen as a Senator The specific ground of disqualification alleged was related to section 44(i) of the Constitution and was that at the date of nomination Mrs Hill was a subject or citizen of a foreign power namely the United Kingdom

The members of the Court who constituted the Court of Disputed Returns in each case raised certain questions for the decision of the full High Court

The first question was whether the Court of Disputed Returns has the jurisdiction invoked by the respective petitioners that is to say jurisdiction under Division 1 of Part XXII of the Commonwealth Electoral Act 1918 to consider a challenge to an election based solely on the ground of disqualification under section 44 of the Constitution Four members of the Court (Gleeson CJ Gaudron Gummow and Hayne JJ) have answered that question in the affirmative holding that there is jurisdiction Three members of the Court (McHugh Kirby Callinan JJ) have answered the question in the negative holding that jurisdiction does not exist

The three members of the Court who held that there was no jurisdiction of the kind invoked did not for that reason go on to answer the remaining questions

The four members of the Court who held that there is jurisdiction dealt with the remaining questions as follows

(a) The United Kingdom is a foreign power within the meaning of section 44 of the Constitution (b) At the time of her nomination Mrs Hill was a subject or citizen of a foreign power and was therefore incapable of being chosen as a Senator (c) Mrs Hill was therefore not duly elected (d) The consequence is not that the entire election of Senators for Queensland was void absolutely

Those four members of the Court were of the opinion that there should be a recount

As to the manner and extent of such recount these are matters upon which persons who have not been represented in the proceedings might wish to have the opportunity of being heard Accordingly each case has been remitted to the Court of Disputed Returns In the case of Sue v Hill the Court will sit at 930 am tomorrow for the purpose of considering the future course of the proceedings and if necessary giving directions

It was ordered that the Commonwealth should pay the costs of the petitioners and Mrs Hill

4425 The conclusion by the Court that other persons involved in the Queensland Senate election should be heard on the manner and extent of a recount was in response to the submissions made by Mr Sharples that the result of a recount as hypothesised by the AEC (the election of Mr Len Harris of One Nation to replace Ms Hill) might not transpire and the election or nonshyelection of the other candidates might be disturbed At paragraph 179 of the decision Justice Gaudron expanded on the doubts about the outcome of a recount that were raised in the Court by Mr Sharplesrsquo submissions

Although nothing was put to suggest that the true intention of the voters cannot be ascertained by a recount it emerged at the hearing that there was a real question as to the manner in which the recount should be conducted As formulated question (e) posits that a recount should be conducted only for the third Senate position However it is possible that a recount of all votes might have consequences for the fourth fifth and sixth Senators Those persons were not represented at the hearing It may be that that was because having regard to the terms of question (e) they were of the view that their positions would not be affected by a recount In the circumstances the appropriate course is to answer question (e) in each of the cases stated ldquoInappropriate to answerrdquo leaving the issue to be determined by a single Justice after hearing such submission if any as the persons returned as the fourth fifth and sixth Senators wish to make

45 Later Proceedings in the Petitions

451 On 24 June 1999 Chief Justice Gleeson sat as the Court of Disputed Returns to further progress the issues about the manner and extent of a recount The petitioner Mr Sue was represented by Ms Collins the first respondent Ms Hill was represented by Mr Templeton the second respondent the AEC was represented by Mr Swan of AGS and Mr Burmester QC appeared for the Attorney-General for the Commonwealth (Intervening) In addition two other persons involved in the election appeared Senator-elect Mason was represented by Mr Shannon and Senator OrsquoChee was represented by Mr Saunders

452 His Honour indicated from the outset that the purpose of the hearing was to address the concerns detailed in paragraph 179 of Justice Gaudronrsquos judgment namely that everyone who had a possible interest in a recount be given an opportunity to be heard His Honour identified three categories of such persons First Mr Len Harris the second candidate on the One Nation group voting ticket second the candidates elected in the fourth fifth and sixth positions for the Queensland Senate and third any non-elected candidate who might possibly replace any of the candidates elected to the fourth fifth and sixth positions Counsel for the AEC identified Ms Jann Piasecki Mr Drew Hutton Senator OrsquoChee and Mr John Bradford as persons who might have an interest within the categories set by the Chief Justice

453 His Honour then directed that a letter be sent immediately by the AEC to Senator-elect Ludwig Senator Woodley Mr John Bradford Mr Len Harris Ms Jann Piasecki and Mr Drew Hutton drawing their attention to the petition and the decision of the Court advising the intention to conduct a recount and that they had the opportunity to address the Court on the manner and extent of that recount

454 The Court was advised by Counsel for the AEC that if a recount was ordered by the Court it would be done by computer as permitted by section 273A of the Electoral Act and could be done the following day in approximately 45 minutes subject to the availability of scrutineers for the interested parties

455 Towards the end of these proceedings Counsel for the first respondent Ms Hill indicated that on the finding by the Full Bench that Ms Hill was not duly elected his client no longer had any interest in the proceedings He was therefore granted leave to be excused from further appearance and was not present for the costs orders at the end of these proceedings

456 On 29 June 1999 proceedings resumed before Chief Justice Gleeson by reference to a Notice of Motion of 28 June 1999 filed by the AEC setting out proposed orders and attaching a schedule for the conduct of a recount as follows

(1) A vote indicated on a ballot paper opposite the name of Heather Hill be counted to the candidate next in the order of the voterrsquos preference and the numbers indicating subsequent preferences be treated as altered accordingly (2) The further counting and recounting be conducted subject to direction (1) as nearly as practicable in accordance with the relevant provisions of section 273A of the Commonwealth Electoral Act 1918 (ldquothe Actrdquo) as if there were 6 vacancies to be filled (3) The further counting and recounting identify which candidate is entitled to be elected to the third place left unfilled by the ineligibility of Heather Hill (4) The further counting and recounting identify which (if any) candidate or candidates other than Mr Ludwig Mr Mason or Senator Woodley is or are entitled to be elected in the place of Mr Ludwig Mr Mason or Senator Woodley to any of the fourth fifth or sixth places to be filled (5) Notwithstanding direction (1) any ballot paper ruled to be informal during the 1998 scrutiny be treated as informal in the further counting and recounting (6) Notwithstanding direction (1) any ballot paper ruled to be formal during the 1998 scrutiny be treated as formal in the further counting and recounting except where a ballot paper is marked with a first preference for Heather Hill followed by the marking of a second preference for each of 2 or more other candidates (7) Notwithstanding direction (1) any ballot paper showing the same preference for Heather Hill and one or more other continuing candidates be set aside as exhausted in accordance with subsection 273(26) at the point in the scrutiny at which it would have been set aside had Heather Hill been a candidate eligible for election (8) Ballot papers marked with group voting ticket votes not be counted again but that the group voting tickets figures ascertained in the 1998 scrutiny be adjusted in accordance with direction (1) for the purposes of the further counting and recounting

457 The petitioner Mr Sue was represented by Ms Tait the second respondent the AEC was represented by Mr Swan of AGS and the Attorney-General for the Commonwealth (Intervening) was represented by Mr Burmester QC A number of other parties sought leave to intervene Mr Harris the second candidate on the One Nation group voting ticket was represented by Mr Gageler Senator Woodley was represented by Mr Davey Senator-elect Mason was represented by Mr Wood and Senator OrsquoChee was represented by Mr Applegarth An affidavit of 29 June of Mr McCarthy for the AEC testified to the notification of these parties by the AEC as ordered at the previous proceedings

458 An affidavit of 28 June of Mr Spelman of the AEC which was read to the Court by Mr Swan for the AEC advised the appropriateness of a full recount computerised in accordance with section 273A of the Electoral Act and in accordance with the directions in the schedule attached to the proposed orders and the inappropriateness of a recount that did not take into account all formal votes cast in the election

459 A full recount as proposed by the AEC was supported by Senator Woodley Senator-elect Mason Senator OrsquoChee Mr Harris and the Attorney-General on the basis that the recount would resolve whether any questions arose about disturbing the election or non-election of other candidates and that the conduct of the recount would not pre-empt any submissions they might make regarding the form of any resultant orders His Honour then ordered the AEC to conduct a full recount according to the schedule and report back to the Court with the results Costs in these proceedings were reserved

4510 On 2 July 1999 proceedings resumed before Chief Justice Gleeson with the same appearances as for 29 July with the exception that (now) Senator Mason and (now) Mr OrsquoChee were represented by Mr Wood An affidavit of 30 June of Mr Spelman of the AEC which was read to the Court by Mr Swan for the AEC advised the outcome of the full recount which was that Mr Harris achieved a quota in place of Ms Hill and the other candidates elected were unchanged from those elected at the original election

4511 With respect to costs in these later proceedings Mr Swan for the AEC and Mr Burmester for the Attorney-General submitted that each party should bear their own costs The other parties present (with the first respondent Ms Hill now absent) submitted that the Commonwealth should pay their costs under section 360(4) of the Electoral Act

4512 His Honour formally granted leave to intervene to Mr OrsquoChee Senator Mason Senator Woodley and Mr Harris and then ordered

1 That Heather Hill was not duly elected at the election held on 3 October 1998 2 That Mr Len Harris be declared duly elected as a Senator for the State of Queensland in the place for which Heather Hill was returned 3 That the second respondent and the Attorney-General for the Commonwealth each bear their own costs 4 That the Commonwealth pay the costs of the petitioner Senator Woodley Senator Mason Mr OrsquoChee and Mr Harris and their costs on previous occasions which have been reserved 5 Certify for counsel

4513 Lastly His Honour noted that Mr Sharples was not present and directed that his petition be re-listed before Justice Callinan to make such orders as he thought appropriate having regard to proceedings in the Sue petition

4514 On 29 July 1999 proceedings in the Sharples petition resumed before Justice Callinan The petitioner Mr Sharples represented himself the first respondent Ms Hill did not appear the second respondent the AEC was represented by Mr Swan of AGS the Attorney-General (Intervening) did not appear and on the question of costs the Commonwealth was represented by Mr Belcher of AGS (instructed by the AEC)

4515 His Honour ordered that

1 The petition be dismissed 2 The second respondent bear its own costs 3 The Commonwealth pay the costs of the petitioner of todayrsquos proceedings and of previous occasions on which costs were reserved

4516 The outcome on costs for both petitions was that under section 360(4) of the Electoral Act the Commonwealth was ordered to pay the costs on a partyparty basis of all the parties (except the Attorney-General and the AEC) in the proceedings extending over a period of some six months and involving numerous counsel and senior counsel Whilst the public interest in these petitions was properly served in all proceedings the award of costs against the Commonwealth will amount to a substantial cost to the public purse

4517 The AEC has now been advised by the Constitutional Unit of the Australian Government Solicitor and the Department of Finance and Administration that the costs awarded against the Commonwealth are the responsibility of the AEC There is no suggestion that the AEC was at fault in the conduct of the election or proceedings on the petitions

5 Implications of the Sue and Sharples Decisions

51 Jurisdiction of the Court of Disputed Returns

511 The majority judgment of the High Court (Gleeson CJ Gaudron Gummow and Hayne JJ) in the SueSharples petitions held that section 354 of the Electoral Act validly conferred jurisdiction upon the Court of Disputed Returns to determine the constitutional question raised in the petitions namely whether Ms Heather Hill was disqualified from being elected under section 44(i) of the Constitution

512 That is it has been concluded that the Court of Disputed Returns has jurisdiction to hear petitions raising questions of constitutional disqualifications filed under Division 1 of Part XXII of the Electoral Act The corollary is that the jurisdiction of the Court of Disputed Returns to hear questions of constitutional qualifications is not limited to matters referred to the Court by the Parliament under Division 2 of Part XXII the Electoral Act

513 The jurisdictional decision in the SueSharples petitions is in accordance with the conduct of proceedings in 1992 in Sykes v Cleary (1992) 176 CLR 77 which was initiated by way of a petition filed by Mr Ian Sykes under Division 1 of Part XXII of the Electoral Act The Sykes v Cleary decision resulted in the disqualification of Mr Phil Cleary under section 44(iv) of the Constitution for holding an office of profit under the Crown at the time of his nomination and a finding that other candidates in the by-election for the Division of Wills Mr Kardamitisis (ALP) and Mr Delacretaz (Liberal Party) were disqualified under section 44(i) of the Constitution for holding dual citizenship with Greece and Switzerland respectively

514 The jurisdictional decision in the SueSharples petitions is also in accordance with the conduct of proceedings in 1996 in Free v Kelly (1996) 70 ALJR 809 which was initiated by way of a petition filed by Mr Ross Free under Division 1 of Part XXII of the Electoral Act The Free v Kelly decision resulted in the disqualification of Ms Jackie Kelly under section 44(iv) of the Constitution for holding an office of profit under the Crown at the time of her nomination

515 The history of the separation of powers between the Parliament and the Judiciary in relation to such matters begins with the commencement of the Commonwealth in 1901 when section 47 of the Constitution prevailed

Until the Parliament otherwise provides any question respecting the qualifications of a senator or of a member of the House of Representatives or respecting a vacancy in either House of the Parliament and any question of a disputed election to either House shall be determined by the House in which the question arises

516 The Parliament then otherwise provided in sections 192-206 of the Commonwealth Electoral Act 1902 to the effect that the validity of any disputed election or return was to be decided by the High Court sitting as the Court of Disputed Returns

517 Further in section 6 of the Commonwealth Electoral Act 1907 the Parliament provided that any question on the qualifications of Members of Parliament or on a vacancy in the Parliament could be referred to the Court by resolution of the House of the Parliament in which the question arose In 1918 these two Acts were consolidated into the Commonwealth Electoral Act 1918 and now appear as Divisions 1 and 2 of Part XXII of the Electoral Act

518 The most recent example of the referral by the Parliament of a question concerning the qualifications of a Member of Parliament is the case of Senator Robert Wood in 1988 when the Senate referred the question of his qualifications by way of Division 2 of Part XXII of the Electoral Act to the Court of Disputed Returns Senator Wood was subsequently found to be disqualified by section 163 of the Electoral Act because he was not an Australian citizen

519 During the course of the 1999 proceedings in the SueSharples petitions the matter of Mr Warren Entsch MP and his alleged disqualification under section 44(v) of the Constitution was raised in the Parliament On 10 June 1999 the Leader of the Opposition moved in the House of Representatives

That the following question be referred to the Court of Disputed Returns for determination pursuant to section 376 of the Commonwealth Electoral Act 1918 Whether the place of the honourable Member for Leichhardt (Mr Entsch) has become vacant pursuant to the provisions of section 44(v) of the Constitution

5110 In response the Attorney-General moved in the House of Representatives that the motion be amended to read as follows

That the House determines that the member for Leichhardt does not have any direct or indirect pecuniary interest with the Public Service of the Commonwealth within the meaning of section 44(v) of the Constitution by reason of any contract entered into by Cape York Concrete Pty Ltd since 3 October 1998 and the member for Leichhardt is therefore not incapable of sitting as a member of this House

5111 The amendment moved by the Attorney-General was resolved in the affirmative That is in the Entsch matter the House of Representatives resolved not to refer the question of the constitutional qualifications of the Member for Leichhardt to the Court of Disputed Returns for consideration but instead resolved itself that he was not so disqualified This action asserted the right of the Parliament to make determinations on the constitutional qualifications of its own members without the involvement of the Judiciary

5112 It could be suggested that such determinations about constitutional qualifications made on the numbers in the relevant House of the Parliament might not be entirely disinterested at a political level And it might appear that anyone other than a Member of Parliament who wishes to challenge the constitutional qualifications of a sitting Member is foreclosed from doing so by the time limitation in section 355(e) of the Electoral Act which provides that a petition must be filed with the High Court within 40 days of the return of the writ for the relevant election

5113 However in those circumstances where the elected Parliament has already formed and the petition filing period has passed the Common Informers (Parliamentary Disqualifications) Act 1975 enables any person to sue the High Court for the payment of $200 per day for the period during which a Member of Parliament sits while being disqualified after being served with the originating process and the sum of $200 only in respect of a past breach The Act restricts such suits to a period no earlier than 12 months before the day on which the suit is instituted In relation to the Entsch matter this would mean that for any common informers action to be instituted Mr Entsch must have been disqualified as alleged within the 12 months preceding the date on which the suit was filed

5114 The most significant issues arising from the related matters discussed above would appear to be twofold

(a) whether the Electoral Act should continue to provide that the constitutional qualifications of Members of Parliament can be disputed by way of petition from any elector or candidate to the Court of Disputed Returns within 40 day days of the return of the writ for the election

(b) whether in the absence of either a referral to the Court of Disputed Returns by the House affected or a petition to the Court within 40 days of the return of the writ for the election or a common informerrsquos suit the Parliament should retain its authority to decide on the constitutional qualifications of its own members

5115 These issues arise out of the dispute resolution scheme provided for in the Electoral Act by the Parliament in the early part of this century and have not before been given direct consideration by the JSCEM since the major amendments to the Electoral Act in 1983 However given that these questions also go to the separation of powers between the Parliament and Judiciary and may therefore require considered submissions from all interested parties the AEC makes the following recommendation

Recommendation 1 That the JSCEM seek a reference to inquire into the powers and functions of the Australian Electoral Commission as expressed in Part II of the Electoral Act and Part I of the Referendum Act and the powers and functions of the Court of Disputed Returns as expressed in Part XXII of the Electoral Act and in Part VIII of the Referendum Act

5116 The recommendation includes reference to the powers and functions of the AEC in the context of the issues raised in part 53 below

52 Constitutional Disqualifications

521 The decision of the High Court in the SueSharples petitions was that any candidate who is a subject or citizen of a foreign power such as the United Kingdom is disqualified at the time of nomination from election to the Parliament That is Ms Heather Hill was disqualified from being elected under section 44(i) of the Constitution

522 This decision was made by the majority members of the Court (Gleeson CJ Gaudron Gummow and Hayne JJ) after they had decided that the Court of Disputed Returns had jurisdiction to hear the petition The other members of the Court (McHugh Kirby and Callinan JJ) who decided that the Court of Disputed Returns had no jurisdiction to hear the petition were not required to form a view on the constitutional qualifications question

523 This decision of the High Court on the interpretation of section 44(i) of the Constitution represents a highly significant statement about the constitutional relationship between the United Kingdom and Australia and in particular makes it very clear that persons holding dual citizenship with the United Kingdom are as equally subject to the constitutional disqualification as persons holding dual citizenship with any other foreign power

524 This may not have been clearly apparent from Sykes v Cleary in 1992 for example where after finding that Mr Phil Cleary was disqualified under section 44(iv) of the Constitution the Court went on to apply section 44(i) of the Constitution to two other candidates Mr Kardamitsis (ALP) and Mr Delacretaz (Liberal Party) who held dual citizenship with Greece and Switzerland respectively and found that they would have also been disqualified Although the Court indicated that all ldquoreasonable stepsrdquo should be taken by candidates to divest themselves of dual citizenship a doubt may have remained after this case as to whether this rule applied equally to British subjects The judgment in the SueSharples petitions should now remove any such doubts

525 However in its publications provided to intending candidates since the 1992 Sykes v Cleary decision the AEC did not find it necessary to make any such distinctions between the United Kingdom and other foreign powers in warning intending candidates to take reasonable steps to divest themselves of dual citizenship before nomination

526 For example on 17 July 1999 some three months before the 1998 federal election the AEC published Electoral Backgrounder No 4 entitled ldquoCandidate Disqualifications Section 44 of the Constitutionrdquo which provided a detailed discussion of the constitutional disqualifications for candidates at federal elections The AEC included information on how British subjects could divest themselves of dual citizenship in paragraph 27 This Backgrounder was made available to the public in hard copy from all AEC offices on the AEC Internet site (wwwaecgovau) and was provided to all candidates as part of the AEC ldquoCandidates Information Kitrdquo

CONTENTS

1 Introduction

2 Summary of Recommendations

3 Summary of Election Petitions

4 Proceedings in Sue v Hill and Sharples v Hill

41 The Sue v Hill Petition 42 The Sharples v Hill Petition 43 Preliminary Proceedings in the Petitions 44 Substantive Proceedings in the Petitions 45 Later Proceedings in the Petitions

5 Implications of the Sue and Sharples Decisions

51 Jurisdiction of the Court of Disputed Returns 52 Constitutional Disqualifications 53 Costs in Election Petitions

6 Proceedings in McClure v AEC and related Petitions

61 The McClure Petition 62 The Related Petitions

7 Implications of the McClure Decision

71 Senate Group Ticket Voting 72 Freedom of Political Communication 73 Class Actions in Petitions 72 Validity of Royal Assent to Bills

8 Proceedings in the Ditchburn Petitions

81 The Ditchburn v AEO Qld Petition 82 The Ditchburn v DRO Herbert Petition

9 Implications of the Ditchburn Decisions

91 Senate Group Ticket Voting 92 Full Preferential Voting

10 Summary of Outcomes in the 1998 Election Petitions

1 Introduction

11 This supplementary submission by the Australian Electoral Commission (AEC) is presented to the Joint Standing Committee on Electoral Matters (JSCEM) in response to its ldquoInquiry into the 1998 Federal Electionrdquo as advertised on 23 January 1999 in all major national newspapers and is supplementary to

bull Submission No 88 entitled ldquoThe Conduct of the 1998 Federal Electionrdquo of 12 March 1999 (volume 3)

bull Submission No 159 entitled ldquoThe Admissibility of Provisional Votesrdquo of 23 March 1999 (volume 4)

bull Submission No 176 entitled ldquoAEC Responses to other Submissions and to Hearingsrdquo of 4 May 1999 (volume 7)

bull Submission No 210 entiled ldquoFurther AEC Responses to other Submissions and to Hearingsrdquo of 23 July 1999 (volume 10)

2 Summary of Recommendations

21 The AEC makes one recommendation in this submission involving no amendments to the Commonwealth Electoral Act 1918 (ldquothe Electoral Actrdquo) or the Referendum (Machinery Provisions) Act 1984 (ldquothe Referendum Actrdquo) This recommendation is in addition to the 29 recommendations in submission No 88 the one recommendation in submission No 159 the five recommendations in submission No 176 and the three recommendations in submission No 210

Recommendation 1 That the JSCEM seek a reference to inquire into the powers and functions of the Australian Electoral Commission as expressed in Part II of the Electoral Act and Part I of the Referendum Act and the powers and functions of the Court of Disputed Returns as expressed in Part XXII of the Electoral Act and in Part VIII of the Referendum Act

3 Summary of Election Petitions

31 This submission reports on the proceedings and decisions in the nine election petitions filed with the High Court of Australia within the 40 day period after the return of the writs for the 1998 federal election under the provisions of Part XXII of the Electoral Act

32 All nine petitions have now been decided by the High Court sitting as the Court of Disputed Returns The decision in two related petitions resulted in the disqualification of an elected Queensland Senate candidate on constitutional grounds and the other seven petitions were dismissed by the Court No costs were ordered against the AEC in any of the petitions

33 A summary of the decisions in the nine petitions is as follows

bull Sue v Hill Sharples v Hill On 23 June 1999 a majority of the High Court decided that the Court of Disputed Returns had jurisdiction to hear the petitions and that Ms Heather Hill was not capable of being elected as a Senator for Queensland under section 44(i) of the Constitution The Commonwealth was ordered to pay the costs of the petitioners and the first respondent and no costs order was made against the AEC

bull On 2 July 1999 in the Sue petition the Court of Disputed Returns ordered that Ms Hill was not duly elected and that Mr Harris was elected in her place The Commonwealth was ordered to pay the costs of the petitioner the first respondent and the intervening parties in these later proceedings and in some of the preliminary proceedings No costs order was made against the Attorney-General or the AEC On 28 July 1999 in the Sharples petition the Court made similar orders

bull McClure v AEC On 24 June 1999 the Court dismissed the petition with Mr McClure ordered to pay the costs of the AEC

bull Polke v AEC Vaughan v AEC Garcia v AEC Heathorn v AEC On 23 July 1999 the Court dismissed these four petitions which were identical to the McClure petition The AEC did not seek any costs orders because the petitioners agreed not to oppose the AEC application for dismissal

bull Ditchburn v AEO Qld Ditchburn v DRO Herbert On 23 July 1999 the Court dismissed these two petitions and Mr Ditchburn was ordered to pay the costs of the AEC

34 On 11 May 1999 a further petition Rudolphy v Lightfoot was filed with the Court disputing the casual vacancy election of Senator Lightfoot in May 1997 on the basis of alleged anomalies in the Western Australian Parliament at the time

35 On 16 June 1999 Justice Gummow referred the following question to the Full Bench of the High Court which is scheduled for hearing on 18 October 1999

Upon their true construction do sections 355(e) and 358 of the Commonwealth Electoral Act 1918 render the petition (a) incompetent or (b) liable to be dismissed or (c) liable to be struck out

36 The AEC will not be providing any comment in this submission on the Rudolphy v Lightfoot petition as it is still before the Court

4 Proceedings in Sue v Hill and Sharples v Hill

41 The Sue v Hill Petition

411 On 1 December 1998 Mr Henry (Nai Leung) Sue filed a petition in the Sydney Registry of the High Court disputing the election of Ms Heather Hill of Pauline Hansonrsquos One Nation Party for the Queensland Senate at the 1998 federal election In his petition Mr Sue asserted his entitlement to vote at the Queensland Senate election and made the following allegations

As at the date of her nomination the Respondent was under an acknowledgement of allegiance obedience or adherence to a foreign power or was a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power within the meaning of section 44(i) of the ConstitutionhellipThe foreign power is BritainhellipAs such the Respondent was incapable of being chosen or sitting as a Senator

412 The petitioner Mr Sue asked the Court to declare that the respondent Ms Hill was not capable of being chosen as a Senator and was not duly elected as a Senator The petitioner also asked the Court to order the Australian Electoral Officer for Queensland to conduct a recount of the Queensland Senate ballot papers in order to find a replacement candidate to be elected instead of Ms Hill Finally the petitioner asked the Court to order that the respondent Ms Hill pay his costs

413 The request by the petitioner for a recount of the Senate ballot papers to find a replacement for Ms Hill from the candidates at the election was in line with precedent set in the Re Wood cases in 1988 which resulted in a recount of the ballot papers for Senator Woodrsquos vacated position after he was disqualified under section 163 of the Electoral Act for not being an Australian citizen at the time of his election and the election of Senator Irina Dunn of the Nuclear Disarmament Party the same Senate group as Senator Wood (see Re Wood (1988) 167 CLR 145 Re Wood [No 2] (1988) 62 ALJR 377 Re Wood [No 3] (1988) 62 ALJR 638 and for further discussion of Senate recounts see paragraphs 453 to 455 in AEC submission No 210 of 23 July 1999)

42 The Sharples v Hill Petition

421 On 2 December 1998 Mr Terry Sharples filed a petition in the Brisbane Registry of the High Court also disputing the election of Ms Heather Hill for the Queensland Senate In his petition Mr Sharples asserted his entitlement to vote at the Queensland Senate election and made the following allegations

The Respondent is by birth a British subject and under allegiance obedience and adherence to the laws of the United KingdomhellipThe respondent immigrated to Australia and has lived in Australia since that date She holds a passport as a British subject which is still currenthellipAustralian law does not recognise British subjects who are domicile or resident as citizens The respondent applied for Australian citizenship in or about April 1998

422 The petitioner Mr Sharples asked the Court to void the election of Ms Hill to order the Queensland Governor to issue a writ for an election to fill the Senate position and to order the Commonwealth to pay his costs Mr Sharples was known to be a disaffected One Nation Party member who was apparently seeking a fresh Senate election or a ldquoby-electionrdquo so as to reduce the possibility of another candidate from the One Nation Senate group replacing Ms Hill which would be the likely outcome of a recount

43 Preliminary Proceedings in the Petitions

431 On 2 and 25 February 1999 solicitors for the respondent Ms Hill Watkins Stokes Templeton filed with the Court a summons and an amended summons seeking the dismissal or striking out of the petition on the following grounds

(a) that the petition did not comply with section 355(a) and (aa) of the Electoral Act because it did not set out the facts relied on in sufficient particularity (b) that the petitioner had failed to publish the petition in the Commonwealth Gazette as required by Order 68 Rule 3 of the High Court Rules (later done and acknowledged) and (c) that the Court of Disputed Returns is not empowered to declare the respondent not capable of being elected or not duly elected

432 On 10 March 199 solicitors for the respondent Ms Hill filed a further amended summons again seeking dismissal of the petition on the above grounds but also seeking the referral to the Full Bench of the High Court a question on the jurisdiction of the Court

hellip in the event that the respondent does not establish any of the grounds in (a) (b) and (c) above the respondent seeks an order that there be referred to the Full Court the following constitutional issue

That the purported vesting in the High Court of Australia by s 354 of the Commonwealth Electoral Act 1918 of the power to try petitions and determine the validity of any election or return is contrary to the separation of powers between the Executive Legislative and Judiciary contained in the Constitution and is therefore invalid

433 At a directions hearing on 15 March 1999 before Chief Justice Gleeson of the High Court the petitioner Mr Sue was represented by Mr Stephen Finch SC the respondent Ms Hill was represented by Mr David Rofe QC The AEC represented by Mr Geoffrey McCarthy of the Australian Government Solicitor sought and was granted leave to enter an appearance as a party to the petition The AEC thereby became the second respondent to the Sue petition

434 Where the AEC is not expressly named as respondent in an election petition the AEC normally seeks leave to join as a party an entitlement provided for in section 359 of the Electoral Act in order to make submissions on the facts of the election under dispute and submissions on the appropriate relief or remedy should the petition succeed The AEC does not make submissions on constitutional issues raised in petitions as this is more appropriately for the Attorney-General for the Commonwealth who is entitled to intervene under section 78A of the Judiciary Act 1903 where constitutional issues are agitated in the High Court

435 In its amicus role in election petitions the AEC does not seek costs against other parties and does not expect costs to be awarded against it as detailed in the decision of Brennan CJ in Free v Kelly (1996) 70 ALJR 809 at 812

The Commission may be represented and heard under s 359 in at least four categories of cases cases where the Commission seeks to defend the conduct of an election or the conduct of an officer of the Commission in relation to an election cases in which the Commission intervenes for the purpose of advancing a proposition for which it seeks curial confirmation to assist it in the discharge of its statutory functions cases where the Commission adopts a partisan stance supporting one party or another and cases where the Commission merely makes appropriate reference to the Act and to authority in order to assist the Court to determine a petition

It may be appropriate to make an order for or against the Commission in the first three categories of case but in the fourth category the Commission is engaged in the proper performance of a statutory function in the public interest The appearance of the Commission in such a case ought not to enlarge the risk of costs to the other parties to the proceedings Being incidental to the proper performance of its statutory functions the cost of being represented and heard ought properly to be borne as a cost of the Commissionrsquos administration This is such a case Expressing as I do appreciation of the considerable assistance that the Commission offered ndash not least in the preparation of an agreed statement of facts ndash it is appropriate to make no order with respect to the costs of the Commission

436 At the first directions hearing in the Sue petition on 15 March 1999 Chief Justice Gleeson indicated his intention to proceed only on the single issue raised by the first respondent Ms Hill in her various summonses of whether the petition complied with sections 355(a) and (aa) of the Electoral Act in providing sufficient facts and particulars to ground the petition His Honour was critical of the petitionerrsquos general claim of a breach of section 44(i) of the Constitution which simply repeated the text of the provision without making any effort to identify what aspects were relevant or at issue and described the petition as ldquoan uncritical spray levelled at the respondent by taking the language of the statute and not bothering to work out what your case really wasrdquo (transcript 15 March 1999 page 12)

437 The question then arose as to whether the petition could be amended to delete aspects of the petition which were not properly pleaded or which the petitioner did not intend to pursue Section 44(i) of the Constitution provides three categories of disqualification (Sykes v Cleary (1992) 176 CLR 77 at 109shy111) and the terms of the petition suggested that Ms Hill was in breach of all three categories even though the only fact presented in the petition that Ms Hill was at the relevant time a citizen of Great Britain appeared to be a breach only of the second category in section 44(i) His Honour heard submissions from all parties on whether the deletion of part of a petition amounted to amending a petition which precedent case law suggested was not permissible (Nile v Wood (1988) 167 CLR 133 at 137)

438 On 19 March 1999 Chief Justice Gleeson delivered his decision on whether the petition was in compliance with section 355 of the Electoral Act and if not whether it should be dismissed or struck out (Attachment 1) His Honour concluded that the petition would have been dismissed but for the exercise of the discretionary power in section 358(2) of the Electoral Act and ordered the petitioner Mr Sue to pay the costs of the respondentrsquos (Ms Hillrsquos) costs of the application even though the respondentrsquos application for dismissal of the petition was itself dismissed The petition was allowed to proceed on the terms that the petitioner was prevented from placing any further reliance on any allegations that fell within either the first or the third categories of disqualification in section 44(i) of the Constitution

439 On the same day in further directions Chief Justice Gleeson proposed that the Sue and the Sharples petitions should be managed separately at this stage Mr Sharples who was not represented had filed his petition in Brisbane and his petition was assigned to Justice Callinan to progress the matter in Brisbane

4310 Chief Justice Gleeson then stated his intention consistent with the wishes of the parties to refer the substantive questions arising under of the Sue petition to the Full Court of the High Court pursuant to section 18 of the Judiciary Act 1903 Assuming the power to state a case His Honour directed the parties to prepare a draft case stated for the consideration of the Full Court There was general agreement between the parties that the case stated would contain a number of questions but should at least include a question as to whether the petitioner had taken all ldquoreasonable stepsrdquo to renounce her citizenship of Great Britain according to the test provided in Sykes v Cleary and a question as to whether Great Britain is a ldquoforeign powerrdquo

4311 It was indicated that it was likely that the matter would be listed before the Full Court on 11 and 12 May 1999 in Canberra The proceedings would involve consideration of a Stated Case in the context of an Agreed Statement of Facts There was general agreement between the parties that the facts would be relatively few and the parties did not anticipate any disagreement as to the facts

4312 His Honour noted tentative agreement between the parties that if the petition were successful a recount would be the appropriate remedy and that the person placed second on the One Nation Partyrsquos group voting ticket would in all probability be the person who should be declared duly elected pursuant to section 360(1)(iv) of the Electoral Act His Honour suggested that that person Mr Len Harris would have to have an interest in the proceedings and might wish to be heard The matter was adjourned with costs in these preliminary proceedings

4313 On 29 March 1999 directions resumed before Chief Justice Gleeson and the draft Case Stated in the Sue petition was settled between the parties On 30 March 1999 His Honour signed the Case Stated with the following questions being referred to the Full Bench of the High Court

(a) Does s 354 of the Act validly confer upon the Court of Disputed Returns jurisdiction to determine the issues raised in the petition (b) Was the first respondent at the date of her nomination a subject or citizen of a foreign power within the meaning of s 44(i) of the Constitution (c) Was the first respondent duly elected at the election (d) If no to (c) was the election void absolutely (e) If no to (d) should the second respondent conduct a recount of the ballot papers cast for the election for the purposes of determining the candidate entitled to be elected to the place for which the first respondent was returned (f) Save for the otherwise dealt with by order who should pay the costs of the Stated Case and of the hearing of the Stated Case before the Full High Court

4314 On 1 April 1999 a directions hearing on the Sharples petition was held by Justice Callinan in Brisbane with Mr Sharples representing himself and Mr Templeton representing the respondent Ms Hill The AEC represented by Mr Maurice Swan of the Australian Government Solicitor was granted leave to enter an appearance as a party to the petition and the AEC thereby became the second respondent to the Sharples petition Justice Callinan indicated that he was inclined to follow the same course as set by Chief Justice Gleeson in the Sue petition and asked for an Agreed Statement of Facts and a draft Case Stated from the parties The matter was adjourned to 22 April 1999

4315 In negotiations between the parties on the preparation of the draft Statement of Facts and Case Stated the petitioner Mr Sharples expressed his substantial disagreement with the Statement of Facts in the Case Stated already concluded in the Sue petition proceedings despite the respondents (Ms Hill and the AEC) expressing the view that the Statement of Facts in the Case Stated in the Sharples petition proceedings should be the same (with the omission only of a paragraph that was peculiar to the Sue Case Stated)

4316 On 22 April in directions before Justice Callinan His Honour ruled on the various points of disagreement in the draft Statement of Facts in the Case Stated between the petitioner Mr Sharples and the two respondents Ms Hill and the AEC This resulted in the addition of the numbers of first preference votes ldquoabove the linerdquo and ldquobelow the linerdquo received by Ms Hill which Mr Sharples submitted would be pertinent to his argument for a Senate ldquoby-electionrdquo or fresh election However His Honour declined to make any changes to the questions in the Case Stated that were agreed in the Sue petition proceedings

4317 At the conclusion of the directions hearing Justice Callinan directed the parties to join in the preparation of a document to reflect the various amendments as ordered to the draft Statement of Facts in the Case Stated in the Sharples proceedings and directed that the amended document be submitted to him by 27 April for certification and referral to the Full Bench Costs in these preliminary proceedings were reserved

4318 Following these proceedings the petitioner Mr Sharples wrote various letters to the other parties expressing his dissatisfaction with the proceedings and filed an affidavit with the Court (which was not served on the other parties) complaining about the conduct of the other parties in negotiations In the event Justice Callinan certified the Case Stated and Statement of Facts in the Sharples petition proceedings and the matter was listed for hearing concurrently or consecutively with the Sue petition proceedings on 11-12 May

44 Substantive Proceedings in the Petitions

441 The hearing by the Full Bench of the High Court of the Case Stated in the Sue petition and the Case Stated in the Sharples petition took place on 11-12 May 1999 in Canberra and because of the number and length of submissions was extended on the second day for another day into 13 May

442 The first petitioner Mr Sue was represented by Mr Stephen Finch SC with Ms Elizabeth Collins The second petitioner Mr Sharples represented himself The first respondent to each petition Ms Heather Hill was represented by Mr Robert Ellicott QC and Mr David Rofe QC with Mr Anthony Tudehope The second respondent to each petition the AEC was represented by Mr Maurice Swan a barrister from the Australian Government Solicitor with considerable experience in disputed proportional representation elections The Attorney-General for the Commonwealth (Intervening) was represented by the Solicitor-General Mr David Bennett QC with Mr Nye Perram and Mr Christopher Ward

443 The first day of the hearing was occupied with the first question in the Case Stated ldquoDoes section 354 of the Act validly confer upon the Court of Disputed Returns jurisdiction to determine the issues raised in the petitionrdquo Counsel for the first respondent Ms Hill submitted that the purported conferral of power upon the Court under section 354 of the Electoral Act was invalid because it contravened the doctrine of separation of powers That is the determination of disputed elections and returns is ancillary to the legislative function of the Parliament and is not a judicial function

444 It was also submitted by Counsel for Ms Hill that even if the Court had jurisdiction to try the petition its powers did not extend to ruling upon whether the first respondent was incapable of being chosen by reason of section 44(i) of the Constitution That is when hearing a petition filed under Division 1 of Part XXII of the Electoral Act the Court is limited to consideration of alleged illegal practices per section 362 of the Act and Division 1 does not confer power on the Court to hear claims in a petition of constitutional disqualification

445 It was further submitted by Counsel for Ms Hill that the Courtrsquos power to consider whether a person was qualified to be a Member of Parliament arises only in Division 2 of Part XXII of the Electoral Act by means of a question referred to the Court by resolution of the relevant House of the Parliament This is why additional powers are conferred on the Court pursuant to section 379 of the Act Counsel for the first respondent relied on the judgment of Gaudron J in Hudson v Lee (1993) 115 ALR 343 where Her Honour held that section 362 of the Act was an ldquoexhaustive statementrdquo of the circumstances in which an election might be declared invalid or void in answer to a petition filed under Division 1 of Part XXII of the Act

446 In response Counsel for the petitioner Mr Sue and the Solicitor-General for the Commonwealth both submitted that the Court should not adopt such an unduly narrow reading of Part XXII of the Electoral Act The Solicitor-General submitted that the view expressed by Gaudron J in Hudson v Lee is limited to questions of misconduct and is authority only for the proposition that misconduct is not actionable unless it finds a source in section 362 of the Act The AEC made no submissions in relation to this first question in the Case Stated

447 The question whether the Court had jurisdiction to determine whether the first respondent Ms Hill was ldquoincapable of being chosenrdquo as a Senator by reason of section 44(i) of the Constitution inevitably drew the Court into the question whether it was sitting as the High Court of Australia and thus having the jurisdiction conferred on the High Court by the Constitution or whether it was sitting as a separate statutory Court namely the Court of Disputed Returns and thus having the jurisdiction conferred on it under Part XXII of the Electoral Act

448 The second question in the Case Stated ldquoWas the first respondent at the date of her nomination a subject or citizen of a foreign powerrdquo was dealt with in two parts whether the United Kingdom is a ldquoforeign powerrdquo for the purposes of section 44(i) of the Constitution and whether Ms Hill was a ldquosubject or citizenrdquo of the United Kingdom irrespective of whether the United Kingdom is a foreign power The AEC made no submissions in relation to this second question in the Case Stated

449 There was little disagreement between the parties concerned that when section 44(i) was enacted the framers of the Constitution did not envisage the phrase ldquoforeign powerrdquo to include the United Kingdom Indeed until 1948 and the passing of the Nationality and Citizenship Act 1948 citizenship of the United Kingdom was the norm for the majority of Australians

4410 Counsel for the first respondent Ms Hill submitted that as at 1900 the phrase ldquoforeign powerrdquo did not and was not intended to include the United Kingdom and that none of the events circumstances or legislative enactments since 1900 have converted the special and unique relationship between the Commonwealth of Australia and the United Kingdom into a relationship now between the Commonwealth and a ldquoforeign powerrdquo It was submitted that the relationship was like that between a parent and a child which forever binds the child to the parent

4411 In relation to whether Ms Hill was a ldquosubject or a citizenrdquo of the United Kingdom Counsel for Ms Hill endeavoured to distinguish the Courtrsquos decision in Sykes v Cleary (1992) 176 CLR 77 on the grounds that Ms Hill was at the time of her nomination an Australian citizen This it was submitted was enough to avoid the operation of section 44(i)

4412 In response Counsel for the petitioner Mr Sue and the Solicitor-General for the Commonwealth both submitted that the United Kingdom is a ldquoforeign powerrdquo for the purposes of section 44(i) of the Constitution Counsel for the petitioner further submitted that even if the United Kingdom was not a foreign power in 1900 and even if difficulties arise in identifying the exact point in time when it became a foreign power it can nevertheless be said with confidence that the emergence of Australia as an independent nation and the occurrence of various relevant events particularly the passage of the Australia Act 1986 mean that at least when Ms Hill was nominated for election the United Kingdom had truly become a ldquoforeign powerrdquo

4413 Finally Counsel for the petitioner Mr Sue and the Solicitor-General for the Commonwealth both submitted that at the date of her nomination Ms Hill held British citizenship and had not taken all reasonable (or any) steps to divest herself of that citizenship In particular she had not made the appropriate declaration of renunciation of that citizenship as per Sykes v Cleary That is if the United Kingdom is a ldquoforeign powerrdquo within the meaning of section 44(i) then Ms Hill was incapable of being chosen as a Senator

4414 In relation to the third question in the Case Stated ldquoWas the first respondent duly elected at the electionrdquo there was common ground between the parties that if the Court found that at the date of her nomination Ms Hill was incapable of being chosen as a Senator by reason of her being a subject or citizen of a foreign power then it must follow that the first respondent was not duly elected at the election

4415 In relation to the fourth question in the Case Stated ldquoIf the first respondent was not duly elected was the election absolutely voidrdquo the parties in Sue v Hill agreed with the submission by the Solicitor-General for the Commonwealth that this question should be answered in the negative that is the election should not be declared absolutely void and a recount would be the appropriate remedy However the second petitioner Mr Sharples submitted that the question should be answered in the positive and a ldquowhole new electionrdquo should be conducted

4416 In relation to the fifth question in the Case Stated ldquoIf the election should not be declared void absolutely should the second respondent conduct a recount of the ballot papers cast for the purpose of determining the candidate entitled to be declared electedrdquo Counsel for the AEC submitted that a recount of the ballot papers for the position of Ms Hill would be the most appropriate remedy per In re Wood (1988) 167 CLR 145 Counsel for the petitioner Mr Sue Counsel for the first respondent Ms Hill and the Solicitor-General for the Commonwealth agreed with the submissions of the AEC

4417 In response to questions from the Bench Counsel for the AEC further submitted that it was highly probable that a member of the same political party as Ms Hill would be elected in her place on a recount of the ballot papers That is a recount would probably elect Mr Len Harris of One Nation in place of Ms Hill of One Nation because around 99 of electors who voted 1 for Ms Hill voted 2 for Mr Harris the second candidate on the One Nation group voting ticket Nevertheless until the recount was actually conducted this remained an hypothetical proposition

4418 In opposition to the submissions of the AEC the second petitioner Mr Sharples submitted that the Court could not be absolutely confident that the votersrsquo original intentions would be reflected by a recount given the distribution of first preferences for Ms Hill above and below the line on the ballot papers He referred also to the fact that Ms Hill was elected third in a field of six whilst in the precedent case In re Wood Mr Wood was elected last in a field of twelve He submitted that a fresh election was therefore the most appropriate remedy The Court then ordered Counsel for the AEC to provide further written submissions on the different consequences that might flow from the different order in which Mr Wood was elected in 1988 and Ms Hill in 1998

4419 The further written submissions were filed by the AEC on 18 May 1999 and showed that in its amicus role the AEC had given early consideration as to whether the election of other candidates would be disturbed by a recount if Ms Hill were to be disqualified and had concluded that this was so unlikely that their involvement in the proceedings need not be suggested to the Court The AEC further submitted that the different order of election in the Wood and the Hill cases would not change the fact that Mr Harris of One Nation would most probably be elected on a recount to replace Ms Hill In the event Mr Sharples chose to file further written submissions in response to the further written submissions of the AEC in which he endeavoured to distinguish In re Wood and further argued the case for a fresh election

4420 The sixth and final question in the Case Stated was ldquoSave for those otherwise dealt with by order who should pay the costs of the Stated Case and of the hearing of the Stated Case before the Full High Courtrdquo Counsel for the petitioner Mr Sue submitted that if the petition was successful the first respondent Ms Hill should pay his costs Counsel for the first respondent Ms Hill submitted that the Commonwealth should pay her costs because the questions raised were ldquoof great contemporary importancerdquo Alternatively it was submitted that if the petition failed then her costs should be paid by the petitioner The AEC submitted that no costs order should be made against the AEC and sought no costs order against the other parties

4421 The Solicitor-General for the Commonwealth submitted that no costs order should be made against the Commonwealth (under section 360(4) of the Electoral Act) and sought no costs order against the other parties The submission that the Commonwealth should not pay the costs of the other parties was not well received by the Bench Justice Callinan called it ldquoan extraordinary submissionrdquo

4422 Justice Gaudron cavilled at the submission by the Solicitor-General on the grounds that ldquoone half of the argument at least is concerned with matters relating to the effect of the Act ndash perhaps more than one halfrdquo and went on to say that ldquodeficienciesrdquo in the Act ldquohave been drawn to the attention of the Commonwealth in litigation for many yearsrdquo yet ldquopeople have been content more or less to leave [the Act] as it is with little thought as to how it operatesrdquo (transcript 12 May 1999 pp 65-66)

4423 The Decision in the Petitions On 23 June 1999 the Full Bench of the High Court handed down its judgment in Sue v Hill (1999) 73 ALJR 1016 and Sharples v Hill (B49 of 1998 High Court 23 June 1999 unreported) (Attachment 2) The majority of the Court (Gleeson CJ Gaudron Gummow and Hayne JJ) answered the questions in the Case Stated as follows

(a) Does s 354 of the Act validly confer upon the Court of Disputed Returns jurisdiction to determine the issues raised in the petition

Answer Yes

(b) Was the first respondent at the date of her nomination a subject or citizen of a foreign power within the meaning of s 44(i) of the Constitution

Answer Yes

(c) Was the first respondent duly elected at the election

Answer No

(d) If no to (c) was the election void absolutely

Answer No

(e) If no to (d) should the second respondent conduct a recount of the ballot papers cast for the election for the purposes of determining the candidate entitled to be elected to the place for which the first respondent was returned

Answer Inappropriate to answer

(f) Save for the otherwise dealt with by order who should pay the costs of the Stated Case and of the hearing of the Stated Case before the Full High Court

Answer The Commonwealth should pay the costs of the petitioner and the first respondent The second respondent should bear its own costs

4424 In delivering the judgment of the Court in the Sue v Hill and the Sharples v Hill petitions Chief Justice Gleeson made the following summary

In these two cases which were commenced in the Court of Disputed Returns the election of Mrs Hill as a Senator for the State of Queensland was challenged on the ground that at the date of her nomination she was incapable of being chosen as a Senator The specific ground of disqualification alleged was related to section 44(i) of the Constitution and was that at the date of nomination Mrs Hill was a subject or citizen of a foreign power namely the United Kingdom

The members of the Court who constituted the Court of Disputed Returns in each case raised certain questions for the decision of the full High Court

The first question was whether the Court of Disputed Returns has the jurisdiction invoked by the respective petitioners that is to say jurisdiction under Division 1 of Part XXII of the Commonwealth Electoral Act 1918 to consider a challenge to an election based solely on the ground of disqualification under section 44 of the Constitution Four members of the Court (Gleeson CJ Gaudron Gummow and Hayne JJ) have answered that question in the affirmative holding that there is jurisdiction Three members of the Court (McHugh Kirby Callinan JJ) have answered the question in the negative holding that jurisdiction does not exist

The three members of the Court who held that there was no jurisdiction of the kind invoked did not for that reason go on to answer the remaining questions

The four members of the Court who held that there is jurisdiction dealt with the remaining questions as follows

(a) The United Kingdom is a foreign power within the meaning of section 44 of the Constitution (b) At the time of her nomination Mrs Hill was a subject or citizen of a foreign power and was therefore incapable of being chosen as a Senator (c) Mrs Hill was therefore not duly elected (d) The consequence is not that the entire election of Senators for Queensland was void absolutely

Those four members of the Court were of the opinion that there should be a recount

As to the manner and extent of such recount these are matters upon which persons who have not been represented in the proceedings might wish to have the opportunity of being heard Accordingly each case has been remitted to the Court of Disputed Returns In the case of Sue v Hill the Court will sit at 930 am tomorrow for the purpose of considering the future course of the proceedings and if necessary giving directions

It was ordered that the Commonwealth should pay the costs of the petitioners and Mrs Hill

4425 The conclusion by the Court that other persons involved in the Queensland Senate election should be heard on the manner and extent of a recount was in response to the submissions made by Mr Sharples that the result of a recount as hypothesised by the AEC (the election of Mr Len Harris of One Nation to replace Ms Hill) might not transpire and the election or nonshyelection of the other candidates might be disturbed At paragraph 179 of the decision Justice Gaudron expanded on the doubts about the outcome of a recount that were raised in the Court by Mr Sharplesrsquo submissions

Although nothing was put to suggest that the true intention of the voters cannot be ascertained by a recount it emerged at the hearing that there was a real question as to the manner in which the recount should be conducted As formulated question (e) posits that a recount should be conducted only for the third Senate position However it is possible that a recount of all votes might have consequences for the fourth fifth and sixth Senators Those persons were not represented at the hearing It may be that that was because having regard to the terms of question (e) they were of the view that their positions would not be affected by a recount In the circumstances the appropriate course is to answer question (e) in each of the cases stated ldquoInappropriate to answerrdquo leaving the issue to be determined by a single Justice after hearing such submission if any as the persons returned as the fourth fifth and sixth Senators wish to make

45 Later Proceedings in the Petitions

451 On 24 June 1999 Chief Justice Gleeson sat as the Court of Disputed Returns to further progress the issues about the manner and extent of a recount The petitioner Mr Sue was represented by Ms Collins the first respondent Ms Hill was represented by Mr Templeton the second respondent the AEC was represented by Mr Swan of AGS and Mr Burmester QC appeared for the Attorney-General for the Commonwealth (Intervening) In addition two other persons involved in the election appeared Senator-elect Mason was represented by Mr Shannon and Senator OrsquoChee was represented by Mr Saunders

452 His Honour indicated from the outset that the purpose of the hearing was to address the concerns detailed in paragraph 179 of Justice Gaudronrsquos judgment namely that everyone who had a possible interest in a recount be given an opportunity to be heard His Honour identified three categories of such persons First Mr Len Harris the second candidate on the One Nation group voting ticket second the candidates elected in the fourth fifth and sixth positions for the Queensland Senate and third any non-elected candidate who might possibly replace any of the candidates elected to the fourth fifth and sixth positions Counsel for the AEC identified Ms Jann Piasecki Mr Drew Hutton Senator OrsquoChee and Mr John Bradford as persons who might have an interest within the categories set by the Chief Justice

453 His Honour then directed that a letter be sent immediately by the AEC to Senator-elect Ludwig Senator Woodley Mr John Bradford Mr Len Harris Ms Jann Piasecki and Mr Drew Hutton drawing their attention to the petition and the decision of the Court advising the intention to conduct a recount and that they had the opportunity to address the Court on the manner and extent of that recount

454 The Court was advised by Counsel for the AEC that if a recount was ordered by the Court it would be done by computer as permitted by section 273A of the Electoral Act and could be done the following day in approximately 45 minutes subject to the availability of scrutineers for the interested parties

455 Towards the end of these proceedings Counsel for the first respondent Ms Hill indicated that on the finding by the Full Bench that Ms Hill was not duly elected his client no longer had any interest in the proceedings He was therefore granted leave to be excused from further appearance and was not present for the costs orders at the end of these proceedings

456 On 29 June 1999 proceedings resumed before Chief Justice Gleeson by reference to a Notice of Motion of 28 June 1999 filed by the AEC setting out proposed orders and attaching a schedule for the conduct of a recount as follows

(1) A vote indicated on a ballot paper opposite the name of Heather Hill be counted to the candidate next in the order of the voterrsquos preference and the numbers indicating subsequent preferences be treated as altered accordingly (2) The further counting and recounting be conducted subject to direction (1) as nearly as practicable in accordance with the relevant provisions of section 273A of the Commonwealth Electoral Act 1918 (ldquothe Actrdquo) as if there were 6 vacancies to be filled (3) The further counting and recounting identify which candidate is entitled to be elected to the third place left unfilled by the ineligibility of Heather Hill (4) The further counting and recounting identify which (if any) candidate or candidates other than Mr Ludwig Mr Mason or Senator Woodley is or are entitled to be elected in the place of Mr Ludwig Mr Mason or Senator Woodley to any of the fourth fifth or sixth places to be filled (5) Notwithstanding direction (1) any ballot paper ruled to be informal during the 1998 scrutiny be treated as informal in the further counting and recounting (6) Notwithstanding direction (1) any ballot paper ruled to be formal during the 1998 scrutiny be treated as formal in the further counting and recounting except where a ballot paper is marked with a first preference for Heather Hill followed by the marking of a second preference for each of 2 or more other candidates (7) Notwithstanding direction (1) any ballot paper showing the same preference for Heather Hill and one or more other continuing candidates be set aside as exhausted in accordance with subsection 273(26) at the point in the scrutiny at which it would have been set aside had Heather Hill been a candidate eligible for election (8) Ballot papers marked with group voting ticket votes not be counted again but that the group voting tickets figures ascertained in the 1998 scrutiny be adjusted in accordance with direction (1) for the purposes of the further counting and recounting

457 The petitioner Mr Sue was represented by Ms Tait the second respondent the AEC was represented by Mr Swan of AGS and the Attorney-General for the Commonwealth (Intervening) was represented by Mr Burmester QC A number of other parties sought leave to intervene Mr Harris the second candidate on the One Nation group voting ticket was represented by Mr Gageler Senator Woodley was represented by Mr Davey Senator-elect Mason was represented by Mr Wood and Senator OrsquoChee was represented by Mr Applegarth An affidavit of 29 June of Mr McCarthy for the AEC testified to the notification of these parties by the AEC as ordered at the previous proceedings

458 An affidavit of 28 June of Mr Spelman of the AEC which was read to the Court by Mr Swan for the AEC advised the appropriateness of a full recount computerised in accordance with section 273A of the Electoral Act and in accordance with the directions in the schedule attached to the proposed orders and the inappropriateness of a recount that did not take into account all formal votes cast in the election

459 A full recount as proposed by the AEC was supported by Senator Woodley Senator-elect Mason Senator OrsquoChee Mr Harris and the Attorney-General on the basis that the recount would resolve whether any questions arose about disturbing the election or non-election of other candidates and that the conduct of the recount would not pre-empt any submissions they might make regarding the form of any resultant orders His Honour then ordered the AEC to conduct a full recount according to the schedule and report back to the Court with the results Costs in these proceedings were reserved

4510 On 2 July 1999 proceedings resumed before Chief Justice Gleeson with the same appearances as for 29 July with the exception that (now) Senator Mason and (now) Mr OrsquoChee were represented by Mr Wood An affidavit of 30 June of Mr Spelman of the AEC which was read to the Court by Mr Swan for the AEC advised the outcome of the full recount which was that Mr Harris achieved a quota in place of Ms Hill and the other candidates elected were unchanged from those elected at the original election

4511 With respect to costs in these later proceedings Mr Swan for the AEC and Mr Burmester for the Attorney-General submitted that each party should bear their own costs The other parties present (with the first respondent Ms Hill now absent) submitted that the Commonwealth should pay their costs under section 360(4) of the Electoral Act

4512 His Honour formally granted leave to intervene to Mr OrsquoChee Senator Mason Senator Woodley and Mr Harris and then ordered

1 That Heather Hill was not duly elected at the election held on 3 October 1998 2 That Mr Len Harris be declared duly elected as a Senator for the State of Queensland in the place for which Heather Hill was returned 3 That the second respondent and the Attorney-General for the Commonwealth each bear their own costs 4 That the Commonwealth pay the costs of the petitioner Senator Woodley Senator Mason Mr OrsquoChee and Mr Harris and their costs on previous occasions which have been reserved 5 Certify for counsel

4513 Lastly His Honour noted that Mr Sharples was not present and directed that his petition be re-listed before Justice Callinan to make such orders as he thought appropriate having regard to proceedings in the Sue petition

4514 On 29 July 1999 proceedings in the Sharples petition resumed before Justice Callinan The petitioner Mr Sharples represented himself the first respondent Ms Hill did not appear the second respondent the AEC was represented by Mr Swan of AGS the Attorney-General (Intervening) did not appear and on the question of costs the Commonwealth was represented by Mr Belcher of AGS (instructed by the AEC)

4515 His Honour ordered that

1 The petition be dismissed 2 The second respondent bear its own costs 3 The Commonwealth pay the costs of the petitioner of todayrsquos proceedings and of previous occasions on which costs were reserved

4516 The outcome on costs for both petitions was that under section 360(4) of the Electoral Act the Commonwealth was ordered to pay the costs on a partyparty basis of all the parties (except the Attorney-General and the AEC) in the proceedings extending over a period of some six months and involving numerous counsel and senior counsel Whilst the public interest in these petitions was properly served in all proceedings the award of costs against the Commonwealth will amount to a substantial cost to the public purse

4517 The AEC has now been advised by the Constitutional Unit of the Australian Government Solicitor and the Department of Finance and Administration that the costs awarded against the Commonwealth are the responsibility of the AEC There is no suggestion that the AEC was at fault in the conduct of the election or proceedings on the petitions

5 Implications of the Sue and Sharples Decisions

51 Jurisdiction of the Court of Disputed Returns

511 The majority judgment of the High Court (Gleeson CJ Gaudron Gummow and Hayne JJ) in the SueSharples petitions held that section 354 of the Electoral Act validly conferred jurisdiction upon the Court of Disputed Returns to determine the constitutional question raised in the petitions namely whether Ms Heather Hill was disqualified from being elected under section 44(i) of the Constitution

512 That is it has been concluded that the Court of Disputed Returns has jurisdiction to hear petitions raising questions of constitutional disqualifications filed under Division 1 of Part XXII of the Electoral Act The corollary is that the jurisdiction of the Court of Disputed Returns to hear questions of constitutional qualifications is not limited to matters referred to the Court by the Parliament under Division 2 of Part XXII the Electoral Act

513 The jurisdictional decision in the SueSharples petitions is in accordance with the conduct of proceedings in 1992 in Sykes v Cleary (1992) 176 CLR 77 which was initiated by way of a petition filed by Mr Ian Sykes under Division 1 of Part XXII of the Electoral Act The Sykes v Cleary decision resulted in the disqualification of Mr Phil Cleary under section 44(iv) of the Constitution for holding an office of profit under the Crown at the time of his nomination and a finding that other candidates in the by-election for the Division of Wills Mr Kardamitisis (ALP) and Mr Delacretaz (Liberal Party) were disqualified under section 44(i) of the Constitution for holding dual citizenship with Greece and Switzerland respectively

514 The jurisdictional decision in the SueSharples petitions is also in accordance with the conduct of proceedings in 1996 in Free v Kelly (1996) 70 ALJR 809 which was initiated by way of a petition filed by Mr Ross Free under Division 1 of Part XXII of the Electoral Act The Free v Kelly decision resulted in the disqualification of Ms Jackie Kelly under section 44(iv) of the Constitution for holding an office of profit under the Crown at the time of her nomination

515 The history of the separation of powers between the Parliament and the Judiciary in relation to such matters begins with the commencement of the Commonwealth in 1901 when section 47 of the Constitution prevailed

Until the Parliament otherwise provides any question respecting the qualifications of a senator or of a member of the House of Representatives or respecting a vacancy in either House of the Parliament and any question of a disputed election to either House shall be determined by the House in which the question arises

516 The Parliament then otherwise provided in sections 192-206 of the Commonwealth Electoral Act 1902 to the effect that the validity of any disputed election or return was to be decided by the High Court sitting as the Court of Disputed Returns

517 Further in section 6 of the Commonwealth Electoral Act 1907 the Parliament provided that any question on the qualifications of Members of Parliament or on a vacancy in the Parliament could be referred to the Court by resolution of the House of the Parliament in which the question arose In 1918 these two Acts were consolidated into the Commonwealth Electoral Act 1918 and now appear as Divisions 1 and 2 of Part XXII of the Electoral Act

518 The most recent example of the referral by the Parliament of a question concerning the qualifications of a Member of Parliament is the case of Senator Robert Wood in 1988 when the Senate referred the question of his qualifications by way of Division 2 of Part XXII of the Electoral Act to the Court of Disputed Returns Senator Wood was subsequently found to be disqualified by section 163 of the Electoral Act because he was not an Australian citizen

519 During the course of the 1999 proceedings in the SueSharples petitions the matter of Mr Warren Entsch MP and his alleged disqualification under section 44(v) of the Constitution was raised in the Parliament On 10 June 1999 the Leader of the Opposition moved in the House of Representatives

That the following question be referred to the Court of Disputed Returns for determination pursuant to section 376 of the Commonwealth Electoral Act 1918 Whether the place of the honourable Member for Leichhardt (Mr Entsch) has become vacant pursuant to the provisions of section 44(v) of the Constitution

5110 In response the Attorney-General moved in the House of Representatives that the motion be amended to read as follows

That the House determines that the member for Leichhardt does not have any direct or indirect pecuniary interest with the Public Service of the Commonwealth within the meaning of section 44(v) of the Constitution by reason of any contract entered into by Cape York Concrete Pty Ltd since 3 October 1998 and the member for Leichhardt is therefore not incapable of sitting as a member of this House

5111 The amendment moved by the Attorney-General was resolved in the affirmative That is in the Entsch matter the House of Representatives resolved not to refer the question of the constitutional qualifications of the Member for Leichhardt to the Court of Disputed Returns for consideration but instead resolved itself that he was not so disqualified This action asserted the right of the Parliament to make determinations on the constitutional qualifications of its own members without the involvement of the Judiciary

5112 It could be suggested that such determinations about constitutional qualifications made on the numbers in the relevant House of the Parliament might not be entirely disinterested at a political level And it might appear that anyone other than a Member of Parliament who wishes to challenge the constitutional qualifications of a sitting Member is foreclosed from doing so by the time limitation in section 355(e) of the Electoral Act which provides that a petition must be filed with the High Court within 40 days of the return of the writ for the relevant election

5113 However in those circumstances where the elected Parliament has already formed and the petition filing period has passed the Common Informers (Parliamentary Disqualifications) Act 1975 enables any person to sue the High Court for the payment of $200 per day for the period during which a Member of Parliament sits while being disqualified after being served with the originating process and the sum of $200 only in respect of a past breach The Act restricts such suits to a period no earlier than 12 months before the day on which the suit is instituted In relation to the Entsch matter this would mean that for any common informers action to be instituted Mr Entsch must have been disqualified as alleged within the 12 months preceding the date on which the suit was filed

5114 The most significant issues arising from the related matters discussed above would appear to be twofold

(a) whether the Electoral Act should continue to provide that the constitutional qualifications of Members of Parliament can be disputed by way of petition from any elector or candidate to the Court of Disputed Returns within 40 day days of the return of the writ for the election

(b) whether in the absence of either a referral to the Court of Disputed Returns by the House affected or a petition to the Court within 40 days of the return of the writ for the election or a common informerrsquos suit the Parliament should retain its authority to decide on the constitutional qualifications of its own members

5115 These issues arise out of the dispute resolution scheme provided for in the Electoral Act by the Parliament in the early part of this century and have not before been given direct consideration by the JSCEM since the major amendments to the Electoral Act in 1983 However given that these questions also go to the separation of powers between the Parliament and Judiciary and may therefore require considered submissions from all interested parties the AEC makes the following recommendation

Recommendation 1 That the JSCEM seek a reference to inquire into the powers and functions of the Australian Electoral Commission as expressed in Part II of the Electoral Act and Part I of the Referendum Act and the powers and functions of the Court of Disputed Returns as expressed in Part XXII of the Electoral Act and in Part VIII of the Referendum Act

5116 The recommendation includes reference to the powers and functions of the AEC in the context of the issues raised in part 53 below

52 Constitutional Disqualifications

521 The decision of the High Court in the SueSharples petitions was that any candidate who is a subject or citizen of a foreign power such as the United Kingdom is disqualified at the time of nomination from election to the Parliament That is Ms Heather Hill was disqualified from being elected under section 44(i) of the Constitution

522 This decision was made by the majority members of the Court (Gleeson CJ Gaudron Gummow and Hayne JJ) after they had decided that the Court of Disputed Returns had jurisdiction to hear the petition The other members of the Court (McHugh Kirby and Callinan JJ) who decided that the Court of Disputed Returns had no jurisdiction to hear the petition were not required to form a view on the constitutional qualifications question

523 This decision of the High Court on the interpretation of section 44(i) of the Constitution represents a highly significant statement about the constitutional relationship between the United Kingdom and Australia and in particular makes it very clear that persons holding dual citizenship with the United Kingdom are as equally subject to the constitutional disqualification as persons holding dual citizenship with any other foreign power

524 This may not have been clearly apparent from Sykes v Cleary in 1992 for example where after finding that Mr Phil Cleary was disqualified under section 44(iv) of the Constitution the Court went on to apply section 44(i) of the Constitution to two other candidates Mr Kardamitsis (ALP) and Mr Delacretaz (Liberal Party) who held dual citizenship with Greece and Switzerland respectively and found that they would have also been disqualified Although the Court indicated that all ldquoreasonable stepsrdquo should be taken by candidates to divest themselves of dual citizenship a doubt may have remained after this case as to whether this rule applied equally to British subjects The judgment in the SueSharples petitions should now remove any such doubts

525 However in its publications provided to intending candidates since the 1992 Sykes v Cleary decision the AEC did not find it necessary to make any such distinctions between the United Kingdom and other foreign powers in warning intending candidates to take reasonable steps to divest themselves of dual citizenship before nomination

526 For example on 17 July 1999 some three months before the 1998 federal election the AEC published Electoral Backgrounder No 4 entitled ldquoCandidate Disqualifications Section 44 of the Constitutionrdquo which provided a detailed discussion of the constitutional disqualifications for candidates at federal elections The AEC included information on how British subjects could divest themselves of dual citizenship in paragraph 27 This Backgrounder was made available to the public in hard copy from all AEC offices on the AEC Internet site (wwwaecgovau) and was provided to all candidates as part of the AEC ldquoCandidates Information Kitrdquo

1 Introduction

11 This supplementary submission by the Australian Electoral Commission (AEC) is presented to the Joint Standing Committee on Electoral Matters (JSCEM) in response to its ldquoInquiry into the 1998 Federal Electionrdquo as advertised on 23 January 1999 in all major national newspapers and is supplementary to

bull Submission No 88 entitled ldquoThe Conduct of the 1998 Federal Electionrdquo of 12 March 1999 (volume 3)

bull Submission No 159 entitled ldquoThe Admissibility of Provisional Votesrdquo of 23 March 1999 (volume 4)

bull Submission No 176 entitled ldquoAEC Responses to other Submissions and to Hearingsrdquo of 4 May 1999 (volume 7)

bull Submission No 210 entiled ldquoFurther AEC Responses to other Submissions and to Hearingsrdquo of 23 July 1999 (volume 10)

2 Summary of Recommendations

21 The AEC makes one recommendation in this submission involving no amendments to the Commonwealth Electoral Act 1918 (ldquothe Electoral Actrdquo) or the Referendum (Machinery Provisions) Act 1984 (ldquothe Referendum Actrdquo) This recommendation is in addition to the 29 recommendations in submission No 88 the one recommendation in submission No 159 the five recommendations in submission No 176 and the three recommendations in submission No 210

Recommendation 1 That the JSCEM seek a reference to inquire into the powers and functions of the Australian Electoral Commission as expressed in Part II of the Electoral Act and Part I of the Referendum Act and the powers and functions of the Court of Disputed Returns as expressed in Part XXII of the Electoral Act and in Part VIII of the Referendum Act

3 Summary of Election Petitions

31 This submission reports on the proceedings and decisions in the nine election petitions filed with the High Court of Australia within the 40 day period after the return of the writs for the 1998 federal election under the provisions of Part XXII of the Electoral Act

32 All nine petitions have now been decided by the High Court sitting as the Court of Disputed Returns The decision in two related petitions resulted in the disqualification of an elected Queensland Senate candidate on constitutional grounds and the other seven petitions were dismissed by the Court No costs were ordered against the AEC in any of the petitions

33 A summary of the decisions in the nine petitions is as follows

bull Sue v Hill Sharples v Hill On 23 June 1999 a majority of the High Court decided that the Court of Disputed Returns had jurisdiction to hear the petitions and that Ms Heather Hill was not capable of being elected as a Senator for Queensland under section 44(i) of the Constitution The Commonwealth was ordered to pay the costs of the petitioners and the first respondent and no costs order was made against the AEC

bull On 2 July 1999 in the Sue petition the Court of Disputed Returns ordered that Ms Hill was not duly elected and that Mr Harris was elected in her place The Commonwealth was ordered to pay the costs of the petitioner the first respondent and the intervening parties in these later proceedings and in some of the preliminary proceedings No costs order was made against the Attorney-General or the AEC On 28 July 1999 in the Sharples petition the Court made similar orders

bull McClure v AEC On 24 June 1999 the Court dismissed the petition with Mr McClure ordered to pay the costs of the AEC

bull Polke v AEC Vaughan v AEC Garcia v AEC Heathorn v AEC On 23 July 1999 the Court dismissed these four petitions which were identical to the McClure petition The AEC did not seek any costs orders because the petitioners agreed not to oppose the AEC application for dismissal

bull Ditchburn v AEO Qld Ditchburn v DRO Herbert On 23 July 1999 the Court dismissed these two petitions and Mr Ditchburn was ordered to pay the costs of the AEC

34 On 11 May 1999 a further petition Rudolphy v Lightfoot was filed with the Court disputing the casual vacancy election of Senator Lightfoot in May 1997 on the basis of alleged anomalies in the Western Australian Parliament at the time

35 On 16 June 1999 Justice Gummow referred the following question to the Full Bench of the High Court which is scheduled for hearing on 18 October 1999

Upon their true construction do sections 355(e) and 358 of the Commonwealth Electoral Act 1918 render the petition (a) incompetent or (b) liable to be dismissed or (c) liable to be struck out

36 The AEC will not be providing any comment in this submission on the Rudolphy v Lightfoot petition as it is still before the Court

4 Proceedings in Sue v Hill and Sharples v Hill

41 The Sue v Hill Petition

411 On 1 December 1998 Mr Henry (Nai Leung) Sue filed a petition in the Sydney Registry of the High Court disputing the election of Ms Heather Hill of Pauline Hansonrsquos One Nation Party for the Queensland Senate at the 1998 federal election In his petition Mr Sue asserted his entitlement to vote at the Queensland Senate election and made the following allegations

As at the date of her nomination the Respondent was under an acknowledgement of allegiance obedience or adherence to a foreign power or was a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power within the meaning of section 44(i) of the ConstitutionhellipThe foreign power is BritainhellipAs such the Respondent was incapable of being chosen or sitting as a Senator

412 The petitioner Mr Sue asked the Court to declare that the respondent Ms Hill was not capable of being chosen as a Senator and was not duly elected as a Senator The petitioner also asked the Court to order the Australian Electoral Officer for Queensland to conduct a recount of the Queensland Senate ballot papers in order to find a replacement candidate to be elected instead of Ms Hill Finally the petitioner asked the Court to order that the respondent Ms Hill pay his costs

413 The request by the petitioner for a recount of the Senate ballot papers to find a replacement for Ms Hill from the candidates at the election was in line with precedent set in the Re Wood cases in 1988 which resulted in a recount of the ballot papers for Senator Woodrsquos vacated position after he was disqualified under section 163 of the Electoral Act for not being an Australian citizen at the time of his election and the election of Senator Irina Dunn of the Nuclear Disarmament Party the same Senate group as Senator Wood (see Re Wood (1988) 167 CLR 145 Re Wood [No 2] (1988) 62 ALJR 377 Re Wood [No 3] (1988) 62 ALJR 638 and for further discussion of Senate recounts see paragraphs 453 to 455 in AEC submission No 210 of 23 July 1999)

42 The Sharples v Hill Petition

421 On 2 December 1998 Mr Terry Sharples filed a petition in the Brisbane Registry of the High Court also disputing the election of Ms Heather Hill for the Queensland Senate In his petition Mr Sharples asserted his entitlement to vote at the Queensland Senate election and made the following allegations

The Respondent is by birth a British subject and under allegiance obedience and adherence to the laws of the United KingdomhellipThe respondent immigrated to Australia and has lived in Australia since that date She holds a passport as a British subject which is still currenthellipAustralian law does not recognise British subjects who are domicile or resident as citizens The respondent applied for Australian citizenship in or about April 1998

422 The petitioner Mr Sharples asked the Court to void the election of Ms Hill to order the Queensland Governor to issue a writ for an election to fill the Senate position and to order the Commonwealth to pay his costs Mr Sharples was known to be a disaffected One Nation Party member who was apparently seeking a fresh Senate election or a ldquoby-electionrdquo so as to reduce the possibility of another candidate from the One Nation Senate group replacing Ms Hill which would be the likely outcome of a recount

43 Preliminary Proceedings in the Petitions

431 On 2 and 25 February 1999 solicitors for the respondent Ms Hill Watkins Stokes Templeton filed with the Court a summons and an amended summons seeking the dismissal or striking out of the petition on the following grounds

(a) that the petition did not comply with section 355(a) and (aa) of the Electoral Act because it did not set out the facts relied on in sufficient particularity (b) that the petitioner had failed to publish the petition in the Commonwealth Gazette as required by Order 68 Rule 3 of the High Court Rules (later done and acknowledged) and (c) that the Court of Disputed Returns is not empowered to declare the respondent not capable of being elected or not duly elected

432 On 10 March 199 solicitors for the respondent Ms Hill filed a further amended summons again seeking dismissal of the petition on the above grounds but also seeking the referral to the Full Bench of the High Court a question on the jurisdiction of the Court

hellip in the event that the respondent does not establish any of the grounds in (a) (b) and (c) above the respondent seeks an order that there be referred to the Full Court the following constitutional issue

That the purported vesting in the High Court of Australia by s 354 of the Commonwealth Electoral Act 1918 of the power to try petitions and determine the validity of any election or return is contrary to the separation of powers between the Executive Legislative and Judiciary contained in the Constitution and is therefore invalid

433 At a directions hearing on 15 March 1999 before Chief Justice Gleeson of the High Court the petitioner Mr Sue was represented by Mr Stephen Finch SC the respondent Ms Hill was represented by Mr David Rofe QC The AEC represented by Mr Geoffrey McCarthy of the Australian Government Solicitor sought and was granted leave to enter an appearance as a party to the petition The AEC thereby became the second respondent to the Sue petition

434 Where the AEC is not expressly named as respondent in an election petition the AEC normally seeks leave to join as a party an entitlement provided for in section 359 of the Electoral Act in order to make submissions on the facts of the election under dispute and submissions on the appropriate relief or remedy should the petition succeed The AEC does not make submissions on constitutional issues raised in petitions as this is more appropriately for the Attorney-General for the Commonwealth who is entitled to intervene under section 78A of the Judiciary Act 1903 where constitutional issues are agitated in the High Court

435 In its amicus role in election petitions the AEC does not seek costs against other parties and does not expect costs to be awarded against it as detailed in the decision of Brennan CJ in Free v Kelly (1996) 70 ALJR 809 at 812

The Commission may be represented and heard under s 359 in at least four categories of cases cases where the Commission seeks to defend the conduct of an election or the conduct of an officer of the Commission in relation to an election cases in which the Commission intervenes for the purpose of advancing a proposition for which it seeks curial confirmation to assist it in the discharge of its statutory functions cases where the Commission adopts a partisan stance supporting one party or another and cases where the Commission merely makes appropriate reference to the Act and to authority in order to assist the Court to determine a petition

It may be appropriate to make an order for or against the Commission in the first three categories of case but in the fourth category the Commission is engaged in the proper performance of a statutory function in the public interest The appearance of the Commission in such a case ought not to enlarge the risk of costs to the other parties to the proceedings Being incidental to the proper performance of its statutory functions the cost of being represented and heard ought properly to be borne as a cost of the Commissionrsquos administration This is such a case Expressing as I do appreciation of the considerable assistance that the Commission offered ndash not least in the preparation of an agreed statement of facts ndash it is appropriate to make no order with respect to the costs of the Commission

436 At the first directions hearing in the Sue petition on 15 March 1999 Chief Justice Gleeson indicated his intention to proceed only on the single issue raised by the first respondent Ms Hill in her various summonses of whether the petition complied with sections 355(a) and (aa) of the Electoral Act in providing sufficient facts and particulars to ground the petition His Honour was critical of the petitionerrsquos general claim of a breach of section 44(i) of the Constitution which simply repeated the text of the provision without making any effort to identify what aspects were relevant or at issue and described the petition as ldquoan uncritical spray levelled at the respondent by taking the language of the statute and not bothering to work out what your case really wasrdquo (transcript 15 March 1999 page 12)

437 The question then arose as to whether the petition could be amended to delete aspects of the petition which were not properly pleaded or which the petitioner did not intend to pursue Section 44(i) of the Constitution provides three categories of disqualification (Sykes v Cleary (1992) 176 CLR 77 at 109shy111) and the terms of the petition suggested that Ms Hill was in breach of all three categories even though the only fact presented in the petition that Ms Hill was at the relevant time a citizen of Great Britain appeared to be a breach only of the second category in section 44(i) His Honour heard submissions from all parties on whether the deletion of part of a petition amounted to amending a petition which precedent case law suggested was not permissible (Nile v Wood (1988) 167 CLR 133 at 137)

438 On 19 March 1999 Chief Justice Gleeson delivered his decision on whether the petition was in compliance with section 355 of the Electoral Act and if not whether it should be dismissed or struck out (Attachment 1) His Honour concluded that the petition would have been dismissed but for the exercise of the discretionary power in section 358(2) of the Electoral Act and ordered the petitioner Mr Sue to pay the costs of the respondentrsquos (Ms Hillrsquos) costs of the application even though the respondentrsquos application for dismissal of the petition was itself dismissed The petition was allowed to proceed on the terms that the petitioner was prevented from placing any further reliance on any allegations that fell within either the first or the third categories of disqualification in section 44(i) of the Constitution

439 On the same day in further directions Chief Justice Gleeson proposed that the Sue and the Sharples petitions should be managed separately at this stage Mr Sharples who was not represented had filed his petition in Brisbane and his petition was assigned to Justice Callinan to progress the matter in Brisbane

4310 Chief Justice Gleeson then stated his intention consistent with the wishes of the parties to refer the substantive questions arising under of the Sue petition to the Full Court of the High Court pursuant to section 18 of the Judiciary Act 1903 Assuming the power to state a case His Honour directed the parties to prepare a draft case stated for the consideration of the Full Court There was general agreement between the parties that the case stated would contain a number of questions but should at least include a question as to whether the petitioner had taken all ldquoreasonable stepsrdquo to renounce her citizenship of Great Britain according to the test provided in Sykes v Cleary and a question as to whether Great Britain is a ldquoforeign powerrdquo

4311 It was indicated that it was likely that the matter would be listed before the Full Court on 11 and 12 May 1999 in Canberra The proceedings would involve consideration of a Stated Case in the context of an Agreed Statement of Facts There was general agreement between the parties that the facts would be relatively few and the parties did not anticipate any disagreement as to the facts

4312 His Honour noted tentative agreement between the parties that if the petition were successful a recount would be the appropriate remedy and that the person placed second on the One Nation Partyrsquos group voting ticket would in all probability be the person who should be declared duly elected pursuant to section 360(1)(iv) of the Electoral Act His Honour suggested that that person Mr Len Harris would have to have an interest in the proceedings and might wish to be heard The matter was adjourned with costs in these preliminary proceedings

4313 On 29 March 1999 directions resumed before Chief Justice Gleeson and the draft Case Stated in the Sue petition was settled between the parties On 30 March 1999 His Honour signed the Case Stated with the following questions being referred to the Full Bench of the High Court

(a) Does s 354 of the Act validly confer upon the Court of Disputed Returns jurisdiction to determine the issues raised in the petition (b) Was the first respondent at the date of her nomination a subject or citizen of a foreign power within the meaning of s 44(i) of the Constitution (c) Was the first respondent duly elected at the election (d) If no to (c) was the election void absolutely (e) If no to (d) should the second respondent conduct a recount of the ballot papers cast for the election for the purposes of determining the candidate entitled to be elected to the place for which the first respondent was returned (f) Save for the otherwise dealt with by order who should pay the costs of the Stated Case and of the hearing of the Stated Case before the Full High Court

4314 On 1 April 1999 a directions hearing on the Sharples petition was held by Justice Callinan in Brisbane with Mr Sharples representing himself and Mr Templeton representing the respondent Ms Hill The AEC represented by Mr Maurice Swan of the Australian Government Solicitor was granted leave to enter an appearance as a party to the petition and the AEC thereby became the second respondent to the Sharples petition Justice Callinan indicated that he was inclined to follow the same course as set by Chief Justice Gleeson in the Sue petition and asked for an Agreed Statement of Facts and a draft Case Stated from the parties The matter was adjourned to 22 April 1999

4315 In negotiations between the parties on the preparation of the draft Statement of Facts and Case Stated the petitioner Mr Sharples expressed his substantial disagreement with the Statement of Facts in the Case Stated already concluded in the Sue petition proceedings despite the respondents (Ms Hill and the AEC) expressing the view that the Statement of Facts in the Case Stated in the Sharples petition proceedings should be the same (with the omission only of a paragraph that was peculiar to the Sue Case Stated)

4316 On 22 April in directions before Justice Callinan His Honour ruled on the various points of disagreement in the draft Statement of Facts in the Case Stated between the petitioner Mr Sharples and the two respondents Ms Hill and the AEC This resulted in the addition of the numbers of first preference votes ldquoabove the linerdquo and ldquobelow the linerdquo received by Ms Hill which Mr Sharples submitted would be pertinent to his argument for a Senate ldquoby-electionrdquo or fresh election However His Honour declined to make any changes to the questions in the Case Stated that were agreed in the Sue petition proceedings

4317 At the conclusion of the directions hearing Justice Callinan directed the parties to join in the preparation of a document to reflect the various amendments as ordered to the draft Statement of Facts in the Case Stated in the Sharples proceedings and directed that the amended document be submitted to him by 27 April for certification and referral to the Full Bench Costs in these preliminary proceedings were reserved

4318 Following these proceedings the petitioner Mr Sharples wrote various letters to the other parties expressing his dissatisfaction with the proceedings and filed an affidavit with the Court (which was not served on the other parties) complaining about the conduct of the other parties in negotiations In the event Justice Callinan certified the Case Stated and Statement of Facts in the Sharples petition proceedings and the matter was listed for hearing concurrently or consecutively with the Sue petition proceedings on 11-12 May

44 Substantive Proceedings in the Petitions

441 The hearing by the Full Bench of the High Court of the Case Stated in the Sue petition and the Case Stated in the Sharples petition took place on 11-12 May 1999 in Canberra and because of the number and length of submissions was extended on the second day for another day into 13 May

442 The first petitioner Mr Sue was represented by Mr Stephen Finch SC with Ms Elizabeth Collins The second petitioner Mr Sharples represented himself The first respondent to each petition Ms Heather Hill was represented by Mr Robert Ellicott QC and Mr David Rofe QC with Mr Anthony Tudehope The second respondent to each petition the AEC was represented by Mr Maurice Swan a barrister from the Australian Government Solicitor with considerable experience in disputed proportional representation elections The Attorney-General for the Commonwealth (Intervening) was represented by the Solicitor-General Mr David Bennett QC with Mr Nye Perram and Mr Christopher Ward

443 The first day of the hearing was occupied with the first question in the Case Stated ldquoDoes section 354 of the Act validly confer upon the Court of Disputed Returns jurisdiction to determine the issues raised in the petitionrdquo Counsel for the first respondent Ms Hill submitted that the purported conferral of power upon the Court under section 354 of the Electoral Act was invalid because it contravened the doctrine of separation of powers That is the determination of disputed elections and returns is ancillary to the legislative function of the Parliament and is not a judicial function

444 It was also submitted by Counsel for Ms Hill that even if the Court had jurisdiction to try the petition its powers did not extend to ruling upon whether the first respondent was incapable of being chosen by reason of section 44(i) of the Constitution That is when hearing a petition filed under Division 1 of Part XXII of the Electoral Act the Court is limited to consideration of alleged illegal practices per section 362 of the Act and Division 1 does not confer power on the Court to hear claims in a petition of constitutional disqualification

445 It was further submitted by Counsel for Ms Hill that the Courtrsquos power to consider whether a person was qualified to be a Member of Parliament arises only in Division 2 of Part XXII of the Electoral Act by means of a question referred to the Court by resolution of the relevant House of the Parliament This is why additional powers are conferred on the Court pursuant to section 379 of the Act Counsel for the first respondent relied on the judgment of Gaudron J in Hudson v Lee (1993) 115 ALR 343 where Her Honour held that section 362 of the Act was an ldquoexhaustive statementrdquo of the circumstances in which an election might be declared invalid or void in answer to a petition filed under Division 1 of Part XXII of the Act

446 In response Counsel for the petitioner Mr Sue and the Solicitor-General for the Commonwealth both submitted that the Court should not adopt such an unduly narrow reading of Part XXII of the Electoral Act The Solicitor-General submitted that the view expressed by Gaudron J in Hudson v Lee is limited to questions of misconduct and is authority only for the proposition that misconduct is not actionable unless it finds a source in section 362 of the Act The AEC made no submissions in relation to this first question in the Case Stated

447 The question whether the Court had jurisdiction to determine whether the first respondent Ms Hill was ldquoincapable of being chosenrdquo as a Senator by reason of section 44(i) of the Constitution inevitably drew the Court into the question whether it was sitting as the High Court of Australia and thus having the jurisdiction conferred on the High Court by the Constitution or whether it was sitting as a separate statutory Court namely the Court of Disputed Returns and thus having the jurisdiction conferred on it under Part XXII of the Electoral Act

448 The second question in the Case Stated ldquoWas the first respondent at the date of her nomination a subject or citizen of a foreign powerrdquo was dealt with in two parts whether the United Kingdom is a ldquoforeign powerrdquo for the purposes of section 44(i) of the Constitution and whether Ms Hill was a ldquosubject or citizenrdquo of the United Kingdom irrespective of whether the United Kingdom is a foreign power The AEC made no submissions in relation to this second question in the Case Stated

449 There was little disagreement between the parties concerned that when section 44(i) was enacted the framers of the Constitution did not envisage the phrase ldquoforeign powerrdquo to include the United Kingdom Indeed until 1948 and the passing of the Nationality and Citizenship Act 1948 citizenship of the United Kingdom was the norm for the majority of Australians

4410 Counsel for the first respondent Ms Hill submitted that as at 1900 the phrase ldquoforeign powerrdquo did not and was not intended to include the United Kingdom and that none of the events circumstances or legislative enactments since 1900 have converted the special and unique relationship between the Commonwealth of Australia and the United Kingdom into a relationship now between the Commonwealth and a ldquoforeign powerrdquo It was submitted that the relationship was like that between a parent and a child which forever binds the child to the parent

4411 In relation to whether Ms Hill was a ldquosubject or a citizenrdquo of the United Kingdom Counsel for Ms Hill endeavoured to distinguish the Courtrsquos decision in Sykes v Cleary (1992) 176 CLR 77 on the grounds that Ms Hill was at the time of her nomination an Australian citizen This it was submitted was enough to avoid the operation of section 44(i)

4412 In response Counsel for the petitioner Mr Sue and the Solicitor-General for the Commonwealth both submitted that the United Kingdom is a ldquoforeign powerrdquo for the purposes of section 44(i) of the Constitution Counsel for the petitioner further submitted that even if the United Kingdom was not a foreign power in 1900 and even if difficulties arise in identifying the exact point in time when it became a foreign power it can nevertheless be said with confidence that the emergence of Australia as an independent nation and the occurrence of various relevant events particularly the passage of the Australia Act 1986 mean that at least when Ms Hill was nominated for election the United Kingdom had truly become a ldquoforeign powerrdquo

4413 Finally Counsel for the petitioner Mr Sue and the Solicitor-General for the Commonwealth both submitted that at the date of her nomination Ms Hill held British citizenship and had not taken all reasonable (or any) steps to divest herself of that citizenship In particular she had not made the appropriate declaration of renunciation of that citizenship as per Sykes v Cleary That is if the United Kingdom is a ldquoforeign powerrdquo within the meaning of section 44(i) then Ms Hill was incapable of being chosen as a Senator

4414 In relation to the third question in the Case Stated ldquoWas the first respondent duly elected at the electionrdquo there was common ground between the parties that if the Court found that at the date of her nomination Ms Hill was incapable of being chosen as a Senator by reason of her being a subject or citizen of a foreign power then it must follow that the first respondent was not duly elected at the election

4415 In relation to the fourth question in the Case Stated ldquoIf the first respondent was not duly elected was the election absolutely voidrdquo the parties in Sue v Hill agreed with the submission by the Solicitor-General for the Commonwealth that this question should be answered in the negative that is the election should not be declared absolutely void and a recount would be the appropriate remedy However the second petitioner Mr Sharples submitted that the question should be answered in the positive and a ldquowhole new electionrdquo should be conducted

4416 In relation to the fifth question in the Case Stated ldquoIf the election should not be declared void absolutely should the second respondent conduct a recount of the ballot papers cast for the purpose of determining the candidate entitled to be declared electedrdquo Counsel for the AEC submitted that a recount of the ballot papers for the position of Ms Hill would be the most appropriate remedy per In re Wood (1988) 167 CLR 145 Counsel for the petitioner Mr Sue Counsel for the first respondent Ms Hill and the Solicitor-General for the Commonwealth agreed with the submissions of the AEC

4417 In response to questions from the Bench Counsel for the AEC further submitted that it was highly probable that a member of the same political party as Ms Hill would be elected in her place on a recount of the ballot papers That is a recount would probably elect Mr Len Harris of One Nation in place of Ms Hill of One Nation because around 99 of electors who voted 1 for Ms Hill voted 2 for Mr Harris the second candidate on the One Nation group voting ticket Nevertheless until the recount was actually conducted this remained an hypothetical proposition

4418 In opposition to the submissions of the AEC the second petitioner Mr Sharples submitted that the Court could not be absolutely confident that the votersrsquo original intentions would be reflected by a recount given the distribution of first preferences for Ms Hill above and below the line on the ballot papers He referred also to the fact that Ms Hill was elected third in a field of six whilst in the precedent case In re Wood Mr Wood was elected last in a field of twelve He submitted that a fresh election was therefore the most appropriate remedy The Court then ordered Counsel for the AEC to provide further written submissions on the different consequences that might flow from the different order in which Mr Wood was elected in 1988 and Ms Hill in 1998

4419 The further written submissions were filed by the AEC on 18 May 1999 and showed that in its amicus role the AEC had given early consideration as to whether the election of other candidates would be disturbed by a recount if Ms Hill were to be disqualified and had concluded that this was so unlikely that their involvement in the proceedings need not be suggested to the Court The AEC further submitted that the different order of election in the Wood and the Hill cases would not change the fact that Mr Harris of One Nation would most probably be elected on a recount to replace Ms Hill In the event Mr Sharples chose to file further written submissions in response to the further written submissions of the AEC in which he endeavoured to distinguish In re Wood and further argued the case for a fresh election

4420 The sixth and final question in the Case Stated was ldquoSave for those otherwise dealt with by order who should pay the costs of the Stated Case and of the hearing of the Stated Case before the Full High Courtrdquo Counsel for the petitioner Mr Sue submitted that if the petition was successful the first respondent Ms Hill should pay his costs Counsel for the first respondent Ms Hill submitted that the Commonwealth should pay her costs because the questions raised were ldquoof great contemporary importancerdquo Alternatively it was submitted that if the petition failed then her costs should be paid by the petitioner The AEC submitted that no costs order should be made against the AEC and sought no costs order against the other parties

4421 The Solicitor-General for the Commonwealth submitted that no costs order should be made against the Commonwealth (under section 360(4) of the Electoral Act) and sought no costs order against the other parties The submission that the Commonwealth should not pay the costs of the other parties was not well received by the Bench Justice Callinan called it ldquoan extraordinary submissionrdquo

4422 Justice Gaudron cavilled at the submission by the Solicitor-General on the grounds that ldquoone half of the argument at least is concerned with matters relating to the effect of the Act ndash perhaps more than one halfrdquo and went on to say that ldquodeficienciesrdquo in the Act ldquohave been drawn to the attention of the Commonwealth in litigation for many yearsrdquo yet ldquopeople have been content more or less to leave [the Act] as it is with little thought as to how it operatesrdquo (transcript 12 May 1999 pp 65-66)

4423 The Decision in the Petitions On 23 June 1999 the Full Bench of the High Court handed down its judgment in Sue v Hill (1999) 73 ALJR 1016 and Sharples v Hill (B49 of 1998 High Court 23 June 1999 unreported) (Attachment 2) The majority of the Court (Gleeson CJ Gaudron Gummow and Hayne JJ) answered the questions in the Case Stated as follows

(a) Does s 354 of the Act validly confer upon the Court of Disputed Returns jurisdiction to determine the issues raised in the petition

Answer Yes

(b) Was the first respondent at the date of her nomination a subject or citizen of a foreign power within the meaning of s 44(i) of the Constitution

Answer Yes

(c) Was the first respondent duly elected at the election

Answer No

(d) If no to (c) was the election void absolutely

Answer No

(e) If no to (d) should the second respondent conduct a recount of the ballot papers cast for the election for the purposes of determining the candidate entitled to be elected to the place for which the first respondent was returned

Answer Inappropriate to answer

(f) Save for the otherwise dealt with by order who should pay the costs of the Stated Case and of the hearing of the Stated Case before the Full High Court

Answer The Commonwealth should pay the costs of the petitioner and the first respondent The second respondent should bear its own costs

4424 In delivering the judgment of the Court in the Sue v Hill and the Sharples v Hill petitions Chief Justice Gleeson made the following summary

In these two cases which were commenced in the Court of Disputed Returns the election of Mrs Hill as a Senator for the State of Queensland was challenged on the ground that at the date of her nomination she was incapable of being chosen as a Senator The specific ground of disqualification alleged was related to section 44(i) of the Constitution and was that at the date of nomination Mrs Hill was a subject or citizen of a foreign power namely the United Kingdom

The members of the Court who constituted the Court of Disputed Returns in each case raised certain questions for the decision of the full High Court

The first question was whether the Court of Disputed Returns has the jurisdiction invoked by the respective petitioners that is to say jurisdiction under Division 1 of Part XXII of the Commonwealth Electoral Act 1918 to consider a challenge to an election based solely on the ground of disqualification under section 44 of the Constitution Four members of the Court (Gleeson CJ Gaudron Gummow and Hayne JJ) have answered that question in the affirmative holding that there is jurisdiction Three members of the Court (McHugh Kirby Callinan JJ) have answered the question in the negative holding that jurisdiction does not exist

The three members of the Court who held that there was no jurisdiction of the kind invoked did not for that reason go on to answer the remaining questions

The four members of the Court who held that there is jurisdiction dealt with the remaining questions as follows

(a) The United Kingdom is a foreign power within the meaning of section 44 of the Constitution (b) At the time of her nomination Mrs Hill was a subject or citizen of a foreign power and was therefore incapable of being chosen as a Senator (c) Mrs Hill was therefore not duly elected (d) The consequence is not that the entire election of Senators for Queensland was void absolutely

Those four members of the Court were of the opinion that there should be a recount

As to the manner and extent of such recount these are matters upon which persons who have not been represented in the proceedings might wish to have the opportunity of being heard Accordingly each case has been remitted to the Court of Disputed Returns In the case of Sue v Hill the Court will sit at 930 am tomorrow for the purpose of considering the future course of the proceedings and if necessary giving directions

It was ordered that the Commonwealth should pay the costs of the petitioners and Mrs Hill

4425 The conclusion by the Court that other persons involved in the Queensland Senate election should be heard on the manner and extent of a recount was in response to the submissions made by Mr Sharples that the result of a recount as hypothesised by the AEC (the election of Mr Len Harris of One Nation to replace Ms Hill) might not transpire and the election or nonshyelection of the other candidates might be disturbed At paragraph 179 of the decision Justice Gaudron expanded on the doubts about the outcome of a recount that were raised in the Court by Mr Sharplesrsquo submissions

Although nothing was put to suggest that the true intention of the voters cannot be ascertained by a recount it emerged at the hearing that there was a real question as to the manner in which the recount should be conducted As formulated question (e) posits that a recount should be conducted only for the third Senate position However it is possible that a recount of all votes might have consequences for the fourth fifth and sixth Senators Those persons were not represented at the hearing It may be that that was because having regard to the terms of question (e) they were of the view that their positions would not be affected by a recount In the circumstances the appropriate course is to answer question (e) in each of the cases stated ldquoInappropriate to answerrdquo leaving the issue to be determined by a single Justice after hearing such submission if any as the persons returned as the fourth fifth and sixth Senators wish to make

45 Later Proceedings in the Petitions

451 On 24 June 1999 Chief Justice Gleeson sat as the Court of Disputed Returns to further progress the issues about the manner and extent of a recount The petitioner Mr Sue was represented by Ms Collins the first respondent Ms Hill was represented by Mr Templeton the second respondent the AEC was represented by Mr Swan of AGS and Mr Burmester QC appeared for the Attorney-General for the Commonwealth (Intervening) In addition two other persons involved in the election appeared Senator-elect Mason was represented by Mr Shannon and Senator OrsquoChee was represented by Mr Saunders

452 His Honour indicated from the outset that the purpose of the hearing was to address the concerns detailed in paragraph 179 of Justice Gaudronrsquos judgment namely that everyone who had a possible interest in a recount be given an opportunity to be heard His Honour identified three categories of such persons First Mr Len Harris the second candidate on the One Nation group voting ticket second the candidates elected in the fourth fifth and sixth positions for the Queensland Senate and third any non-elected candidate who might possibly replace any of the candidates elected to the fourth fifth and sixth positions Counsel for the AEC identified Ms Jann Piasecki Mr Drew Hutton Senator OrsquoChee and Mr John Bradford as persons who might have an interest within the categories set by the Chief Justice

453 His Honour then directed that a letter be sent immediately by the AEC to Senator-elect Ludwig Senator Woodley Mr John Bradford Mr Len Harris Ms Jann Piasecki and Mr Drew Hutton drawing their attention to the petition and the decision of the Court advising the intention to conduct a recount and that they had the opportunity to address the Court on the manner and extent of that recount

454 The Court was advised by Counsel for the AEC that if a recount was ordered by the Court it would be done by computer as permitted by section 273A of the Electoral Act and could be done the following day in approximately 45 minutes subject to the availability of scrutineers for the interested parties

455 Towards the end of these proceedings Counsel for the first respondent Ms Hill indicated that on the finding by the Full Bench that Ms Hill was not duly elected his client no longer had any interest in the proceedings He was therefore granted leave to be excused from further appearance and was not present for the costs orders at the end of these proceedings

456 On 29 June 1999 proceedings resumed before Chief Justice Gleeson by reference to a Notice of Motion of 28 June 1999 filed by the AEC setting out proposed orders and attaching a schedule for the conduct of a recount as follows

(1) A vote indicated on a ballot paper opposite the name of Heather Hill be counted to the candidate next in the order of the voterrsquos preference and the numbers indicating subsequent preferences be treated as altered accordingly (2) The further counting and recounting be conducted subject to direction (1) as nearly as practicable in accordance with the relevant provisions of section 273A of the Commonwealth Electoral Act 1918 (ldquothe Actrdquo) as if there were 6 vacancies to be filled (3) The further counting and recounting identify which candidate is entitled to be elected to the third place left unfilled by the ineligibility of Heather Hill (4) The further counting and recounting identify which (if any) candidate or candidates other than Mr Ludwig Mr Mason or Senator Woodley is or are entitled to be elected in the place of Mr Ludwig Mr Mason or Senator Woodley to any of the fourth fifth or sixth places to be filled (5) Notwithstanding direction (1) any ballot paper ruled to be informal during the 1998 scrutiny be treated as informal in the further counting and recounting (6) Notwithstanding direction (1) any ballot paper ruled to be formal during the 1998 scrutiny be treated as formal in the further counting and recounting except where a ballot paper is marked with a first preference for Heather Hill followed by the marking of a second preference for each of 2 or more other candidates (7) Notwithstanding direction (1) any ballot paper showing the same preference for Heather Hill and one or more other continuing candidates be set aside as exhausted in accordance with subsection 273(26) at the point in the scrutiny at which it would have been set aside had Heather Hill been a candidate eligible for election (8) Ballot papers marked with group voting ticket votes not be counted again but that the group voting tickets figures ascertained in the 1998 scrutiny be adjusted in accordance with direction (1) for the purposes of the further counting and recounting

457 The petitioner Mr Sue was represented by Ms Tait the second respondent the AEC was represented by Mr Swan of AGS and the Attorney-General for the Commonwealth (Intervening) was represented by Mr Burmester QC A number of other parties sought leave to intervene Mr Harris the second candidate on the One Nation group voting ticket was represented by Mr Gageler Senator Woodley was represented by Mr Davey Senator-elect Mason was represented by Mr Wood and Senator OrsquoChee was represented by Mr Applegarth An affidavit of 29 June of Mr McCarthy for the AEC testified to the notification of these parties by the AEC as ordered at the previous proceedings

458 An affidavit of 28 June of Mr Spelman of the AEC which was read to the Court by Mr Swan for the AEC advised the appropriateness of a full recount computerised in accordance with section 273A of the Electoral Act and in accordance with the directions in the schedule attached to the proposed orders and the inappropriateness of a recount that did not take into account all formal votes cast in the election

459 A full recount as proposed by the AEC was supported by Senator Woodley Senator-elect Mason Senator OrsquoChee Mr Harris and the Attorney-General on the basis that the recount would resolve whether any questions arose about disturbing the election or non-election of other candidates and that the conduct of the recount would not pre-empt any submissions they might make regarding the form of any resultant orders His Honour then ordered the AEC to conduct a full recount according to the schedule and report back to the Court with the results Costs in these proceedings were reserved

4510 On 2 July 1999 proceedings resumed before Chief Justice Gleeson with the same appearances as for 29 July with the exception that (now) Senator Mason and (now) Mr OrsquoChee were represented by Mr Wood An affidavit of 30 June of Mr Spelman of the AEC which was read to the Court by Mr Swan for the AEC advised the outcome of the full recount which was that Mr Harris achieved a quota in place of Ms Hill and the other candidates elected were unchanged from those elected at the original election

4511 With respect to costs in these later proceedings Mr Swan for the AEC and Mr Burmester for the Attorney-General submitted that each party should bear their own costs The other parties present (with the first respondent Ms Hill now absent) submitted that the Commonwealth should pay their costs under section 360(4) of the Electoral Act

4512 His Honour formally granted leave to intervene to Mr OrsquoChee Senator Mason Senator Woodley and Mr Harris and then ordered

1 That Heather Hill was not duly elected at the election held on 3 October 1998 2 That Mr Len Harris be declared duly elected as a Senator for the State of Queensland in the place for which Heather Hill was returned 3 That the second respondent and the Attorney-General for the Commonwealth each bear their own costs 4 That the Commonwealth pay the costs of the petitioner Senator Woodley Senator Mason Mr OrsquoChee and Mr Harris and their costs on previous occasions which have been reserved 5 Certify for counsel

4513 Lastly His Honour noted that Mr Sharples was not present and directed that his petition be re-listed before Justice Callinan to make such orders as he thought appropriate having regard to proceedings in the Sue petition

4514 On 29 July 1999 proceedings in the Sharples petition resumed before Justice Callinan The petitioner Mr Sharples represented himself the first respondent Ms Hill did not appear the second respondent the AEC was represented by Mr Swan of AGS the Attorney-General (Intervening) did not appear and on the question of costs the Commonwealth was represented by Mr Belcher of AGS (instructed by the AEC)

4515 His Honour ordered that

1 The petition be dismissed 2 The second respondent bear its own costs 3 The Commonwealth pay the costs of the petitioner of todayrsquos proceedings and of previous occasions on which costs were reserved

4516 The outcome on costs for both petitions was that under section 360(4) of the Electoral Act the Commonwealth was ordered to pay the costs on a partyparty basis of all the parties (except the Attorney-General and the AEC) in the proceedings extending over a period of some six months and involving numerous counsel and senior counsel Whilst the public interest in these petitions was properly served in all proceedings the award of costs against the Commonwealth will amount to a substantial cost to the public purse

4517 The AEC has now been advised by the Constitutional Unit of the Australian Government Solicitor and the Department of Finance and Administration that the costs awarded against the Commonwealth are the responsibility of the AEC There is no suggestion that the AEC was at fault in the conduct of the election or proceedings on the petitions

5 Implications of the Sue and Sharples Decisions

51 Jurisdiction of the Court of Disputed Returns

511 The majority judgment of the High Court (Gleeson CJ Gaudron Gummow and Hayne JJ) in the SueSharples petitions held that section 354 of the Electoral Act validly conferred jurisdiction upon the Court of Disputed Returns to determine the constitutional question raised in the petitions namely whether Ms Heather Hill was disqualified from being elected under section 44(i) of the Constitution

512 That is it has been concluded that the Court of Disputed Returns has jurisdiction to hear petitions raising questions of constitutional disqualifications filed under Division 1 of Part XXII of the Electoral Act The corollary is that the jurisdiction of the Court of Disputed Returns to hear questions of constitutional qualifications is not limited to matters referred to the Court by the Parliament under Division 2 of Part XXII the Electoral Act

513 The jurisdictional decision in the SueSharples petitions is in accordance with the conduct of proceedings in 1992 in Sykes v Cleary (1992) 176 CLR 77 which was initiated by way of a petition filed by Mr Ian Sykes under Division 1 of Part XXII of the Electoral Act The Sykes v Cleary decision resulted in the disqualification of Mr Phil Cleary under section 44(iv) of the Constitution for holding an office of profit under the Crown at the time of his nomination and a finding that other candidates in the by-election for the Division of Wills Mr Kardamitisis (ALP) and Mr Delacretaz (Liberal Party) were disqualified under section 44(i) of the Constitution for holding dual citizenship with Greece and Switzerland respectively

514 The jurisdictional decision in the SueSharples petitions is also in accordance with the conduct of proceedings in 1996 in Free v Kelly (1996) 70 ALJR 809 which was initiated by way of a petition filed by Mr Ross Free under Division 1 of Part XXII of the Electoral Act The Free v Kelly decision resulted in the disqualification of Ms Jackie Kelly under section 44(iv) of the Constitution for holding an office of profit under the Crown at the time of her nomination

515 The history of the separation of powers between the Parliament and the Judiciary in relation to such matters begins with the commencement of the Commonwealth in 1901 when section 47 of the Constitution prevailed

Until the Parliament otherwise provides any question respecting the qualifications of a senator or of a member of the House of Representatives or respecting a vacancy in either House of the Parliament and any question of a disputed election to either House shall be determined by the House in which the question arises

516 The Parliament then otherwise provided in sections 192-206 of the Commonwealth Electoral Act 1902 to the effect that the validity of any disputed election or return was to be decided by the High Court sitting as the Court of Disputed Returns

517 Further in section 6 of the Commonwealth Electoral Act 1907 the Parliament provided that any question on the qualifications of Members of Parliament or on a vacancy in the Parliament could be referred to the Court by resolution of the House of the Parliament in which the question arose In 1918 these two Acts were consolidated into the Commonwealth Electoral Act 1918 and now appear as Divisions 1 and 2 of Part XXII of the Electoral Act

518 The most recent example of the referral by the Parliament of a question concerning the qualifications of a Member of Parliament is the case of Senator Robert Wood in 1988 when the Senate referred the question of his qualifications by way of Division 2 of Part XXII of the Electoral Act to the Court of Disputed Returns Senator Wood was subsequently found to be disqualified by section 163 of the Electoral Act because he was not an Australian citizen

519 During the course of the 1999 proceedings in the SueSharples petitions the matter of Mr Warren Entsch MP and his alleged disqualification under section 44(v) of the Constitution was raised in the Parliament On 10 June 1999 the Leader of the Opposition moved in the House of Representatives

That the following question be referred to the Court of Disputed Returns for determination pursuant to section 376 of the Commonwealth Electoral Act 1918 Whether the place of the honourable Member for Leichhardt (Mr Entsch) has become vacant pursuant to the provisions of section 44(v) of the Constitution

5110 In response the Attorney-General moved in the House of Representatives that the motion be amended to read as follows

That the House determines that the member for Leichhardt does not have any direct or indirect pecuniary interest with the Public Service of the Commonwealth within the meaning of section 44(v) of the Constitution by reason of any contract entered into by Cape York Concrete Pty Ltd since 3 October 1998 and the member for Leichhardt is therefore not incapable of sitting as a member of this House

5111 The amendment moved by the Attorney-General was resolved in the affirmative That is in the Entsch matter the House of Representatives resolved not to refer the question of the constitutional qualifications of the Member for Leichhardt to the Court of Disputed Returns for consideration but instead resolved itself that he was not so disqualified This action asserted the right of the Parliament to make determinations on the constitutional qualifications of its own members without the involvement of the Judiciary

5112 It could be suggested that such determinations about constitutional qualifications made on the numbers in the relevant House of the Parliament might not be entirely disinterested at a political level And it might appear that anyone other than a Member of Parliament who wishes to challenge the constitutional qualifications of a sitting Member is foreclosed from doing so by the time limitation in section 355(e) of the Electoral Act which provides that a petition must be filed with the High Court within 40 days of the return of the writ for the relevant election

5113 However in those circumstances where the elected Parliament has already formed and the petition filing period has passed the Common Informers (Parliamentary Disqualifications) Act 1975 enables any person to sue the High Court for the payment of $200 per day for the period during which a Member of Parliament sits while being disqualified after being served with the originating process and the sum of $200 only in respect of a past breach The Act restricts such suits to a period no earlier than 12 months before the day on which the suit is instituted In relation to the Entsch matter this would mean that for any common informers action to be instituted Mr Entsch must have been disqualified as alleged within the 12 months preceding the date on which the suit was filed

5114 The most significant issues arising from the related matters discussed above would appear to be twofold

(a) whether the Electoral Act should continue to provide that the constitutional qualifications of Members of Parliament can be disputed by way of petition from any elector or candidate to the Court of Disputed Returns within 40 day days of the return of the writ for the election

(b) whether in the absence of either a referral to the Court of Disputed Returns by the House affected or a petition to the Court within 40 days of the return of the writ for the election or a common informerrsquos suit the Parliament should retain its authority to decide on the constitutional qualifications of its own members

5115 These issues arise out of the dispute resolution scheme provided for in the Electoral Act by the Parliament in the early part of this century and have not before been given direct consideration by the JSCEM since the major amendments to the Electoral Act in 1983 However given that these questions also go to the separation of powers between the Parliament and Judiciary and may therefore require considered submissions from all interested parties the AEC makes the following recommendation

Recommendation 1 That the JSCEM seek a reference to inquire into the powers and functions of the Australian Electoral Commission as expressed in Part II of the Electoral Act and Part I of the Referendum Act and the powers and functions of the Court of Disputed Returns as expressed in Part XXII of the Electoral Act and in Part VIII of the Referendum Act

5116 The recommendation includes reference to the powers and functions of the AEC in the context of the issues raised in part 53 below

52 Constitutional Disqualifications

521 The decision of the High Court in the SueSharples petitions was that any candidate who is a subject or citizen of a foreign power such as the United Kingdom is disqualified at the time of nomination from election to the Parliament That is Ms Heather Hill was disqualified from being elected under section 44(i) of the Constitution

522 This decision was made by the majority members of the Court (Gleeson CJ Gaudron Gummow and Hayne JJ) after they had decided that the Court of Disputed Returns had jurisdiction to hear the petition The other members of the Court (McHugh Kirby and Callinan JJ) who decided that the Court of Disputed Returns had no jurisdiction to hear the petition were not required to form a view on the constitutional qualifications question

523 This decision of the High Court on the interpretation of section 44(i) of the Constitution represents a highly significant statement about the constitutional relationship between the United Kingdom and Australia and in particular makes it very clear that persons holding dual citizenship with the United Kingdom are as equally subject to the constitutional disqualification as persons holding dual citizenship with any other foreign power

524 This may not have been clearly apparent from Sykes v Cleary in 1992 for example where after finding that Mr Phil Cleary was disqualified under section 44(iv) of the Constitution the Court went on to apply section 44(i) of the Constitution to two other candidates Mr Kardamitsis (ALP) and Mr Delacretaz (Liberal Party) who held dual citizenship with Greece and Switzerland respectively and found that they would have also been disqualified Although the Court indicated that all ldquoreasonable stepsrdquo should be taken by candidates to divest themselves of dual citizenship a doubt may have remained after this case as to whether this rule applied equally to British subjects The judgment in the SueSharples petitions should now remove any such doubts

525 However in its publications provided to intending candidates since the 1992 Sykes v Cleary decision the AEC did not find it necessary to make any such distinctions between the United Kingdom and other foreign powers in warning intending candidates to take reasonable steps to divest themselves of dual citizenship before nomination

526 For example on 17 July 1999 some three months before the 1998 federal election the AEC published Electoral Backgrounder No 4 entitled ldquoCandidate Disqualifications Section 44 of the Constitutionrdquo which provided a detailed discussion of the constitutional disqualifications for candidates at federal elections The AEC included information on how British subjects could divest themselves of dual citizenship in paragraph 27 This Backgrounder was made available to the public in hard copy from all AEC offices on the AEC Internet site (wwwaecgovau) and was provided to all candidates as part of the AEC ldquoCandidates Information Kitrdquo

33 A summary of the decisions in the nine petitions is as follows

bull Sue v Hill Sharples v Hill On 23 June 1999 a majority of the High Court decided that the Court of Disputed Returns had jurisdiction to hear the petitions and that Ms Heather Hill was not capable of being elected as a Senator for Queensland under section 44(i) of the Constitution The Commonwealth was ordered to pay the costs of the petitioners and the first respondent and no costs order was made against the AEC

bull On 2 July 1999 in the Sue petition the Court of Disputed Returns ordered that Ms Hill was not duly elected and that Mr Harris was elected in her place The Commonwealth was ordered to pay the costs of the petitioner the first respondent and the intervening parties in these later proceedings and in some of the preliminary proceedings No costs order was made against the Attorney-General or the AEC On 28 July 1999 in the Sharples petition the Court made similar orders

bull McClure v AEC On 24 June 1999 the Court dismissed the petition with Mr McClure ordered to pay the costs of the AEC

bull Polke v AEC Vaughan v AEC Garcia v AEC Heathorn v AEC On 23 July 1999 the Court dismissed these four petitions which were identical to the McClure petition The AEC did not seek any costs orders because the petitioners agreed not to oppose the AEC application for dismissal

bull Ditchburn v AEO Qld Ditchburn v DRO Herbert On 23 July 1999 the Court dismissed these two petitions and Mr Ditchburn was ordered to pay the costs of the AEC

34 On 11 May 1999 a further petition Rudolphy v Lightfoot was filed with the Court disputing the casual vacancy election of Senator Lightfoot in May 1997 on the basis of alleged anomalies in the Western Australian Parliament at the time

35 On 16 June 1999 Justice Gummow referred the following question to the Full Bench of the High Court which is scheduled for hearing on 18 October 1999

Upon their true construction do sections 355(e) and 358 of the Commonwealth Electoral Act 1918 render the petition (a) incompetent or (b) liable to be dismissed or (c) liable to be struck out

36 The AEC will not be providing any comment in this submission on the Rudolphy v Lightfoot petition as it is still before the Court

4 Proceedings in Sue v Hill and Sharples v Hill

41 The Sue v Hill Petition

411 On 1 December 1998 Mr Henry (Nai Leung) Sue filed a petition in the Sydney Registry of the High Court disputing the election of Ms Heather Hill of Pauline Hansonrsquos One Nation Party for the Queensland Senate at the 1998 federal election In his petition Mr Sue asserted his entitlement to vote at the Queensland Senate election and made the following allegations

As at the date of her nomination the Respondent was under an acknowledgement of allegiance obedience or adherence to a foreign power or was a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power within the meaning of section 44(i) of the ConstitutionhellipThe foreign power is BritainhellipAs such the Respondent was incapable of being chosen or sitting as a Senator

412 The petitioner Mr Sue asked the Court to declare that the respondent Ms Hill was not capable of being chosen as a Senator and was not duly elected as a Senator The petitioner also asked the Court to order the Australian Electoral Officer for Queensland to conduct a recount of the Queensland Senate ballot papers in order to find a replacement candidate to be elected instead of Ms Hill Finally the petitioner asked the Court to order that the respondent Ms Hill pay his costs

413 The request by the petitioner for a recount of the Senate ballot papers to find a replacement for Ms Hill from the candidates at the election was in line with precedent set in the Re Wood cases in 1988 which resulted in a recount of the ballot papers for Senator Woodrsquos vacated position after he was disqualified under section 163 of the Electoral Act for not being an Australian citizen at the time of his election and the election of Senator Irina Dunn of the Nuclear Disarmament Party the same Senate group as Senator Wood (see Re Wood (1988) 167 CLR 145 Re Wood [No 2] (1988) 62 ALJR 377 Re Wood [No 3] (1988) 62 ALJR 638 and for further discussion of Senate recounts see paragraphs 453 to 455 in AEC submission No 210 of 23 July 1999)

42 The Sharples v Hill Petition

421 On 2 December 1998 Mr Terry Sharples filed a petition in the Brisbane Registry of the High Court also disputing the election of Ms Heather Hill for the Queensland Senate In his petition Mr Sharples asserted his entitlement to vote at the Queensland Senate election and made the following allegations

The Respondent is by birth a British subject and under allegiance obedience and adherence to the laws of the United KingdomhellipThe respondent immigrated to Australia and has lived in Australia since that date She holds a passport as a British subject which is still currenthellipAustralian law does not recognise British subjects who are domicile or resident as citizens The respondent applied for Australian citizenship in or about April 1998

422 The petitioner Mr Sharples asked the Court to void the election of Ms Hill to order the Queensland Governor to issue a writ for an election to fill the Senate position and to order the Commonwealth to pay his costs Mr Sharples was known to be a disaffected One Nation Party member who was apparently seeking a fresh Senate election or a ldquoby-electionrdquo so as to reduce the possibility of another candidate from the One Nation Senate group replacing Ms Hill which would be the likely outcome of a recount

43 Preliminary Proceedings in the Petitions

431 On 2 and 25 February 1999 solicitors for the respondent Ms Hill Watkins Stokes Templeton filed with the Court a summons and an amended summons seeking the dismissal or striking out of the petition on the following grounds

(a) that the petition did not comply with section 355(a) and (aa) of the Electoral Act because it did not set out the facts relied on in sufficient particularity (b) that the petitioner had failed to publish the petition in the Commonwealth Gazette as required by Order 68 Rule 3 of the High Court Rules (later done and acknowledged) and (c) that the Court of Disputed Returns is not empowered to declare the respondent not capable of being elected or not duly elected

432 On 10 March 199 solicitors for the respondent Ms Hill filed a further amended summons again seeking dismissal of the petition on the above grounds but also seeking the referral to the Full Bench of the High Court a question on the jurisdiction of the Court

hellip in the event that the respondent does not establish any of the grounds in (a) (b) and (c) above the respondent seeks an order that there be referred to the Full Court the following constitutional issue

That the purported vesting in the High Court of Australia by s 354 of the Commonwealth Electoral Act 1918 of the power to try petitions and determine the validity of any election or return is contrary to the separation of powers between the Executive Legislative and Judiciary contained in the Constitution and is therefore invalid

433 At a directions hearing on 15 March 1999 before Chief Justice Gleeson of the High Court the petitioner Mr Sue was represented by Mr Stephen Finch SC the respondent Ms Hill was represented by Mr David Rofe QC The AEC represented by Mr Geoffrey McCarthy of the Australian Government Solicitor sought and was granted leave to enter an appearance as a party to the petition The AEC thereby became the second respondent to the Sue petition

434 Where the AEC is not expressly named as respondent in an election petition the AEC normally seeks leave to join as a party an entitlement provided for in section 359 of the Electoral Act in order to make submissions on the facts of the election under dispute and submissions on the appropriate relief or remedy should the petition succeed The AEC does not make submissions on constitutional issues raised in petitions as this is more appropriately for the Attorney-General for the Commonwealth who is entitled to intervene under section 78A of the Judiciary Act 1903 where constitutional issues are agitated in the High Court

435 In its amicus role in election petitions the AEC does not seek costs against other parties and does not expect costs to be awarded against it as detailed in the decision of Brennan CJ in Free v Kelly (1996) 70 ALJR 809 at 812

The Commission may be represented and heard under s 359 in at least four categories of cases cases where the Commission seeks to defend the conduct of an election or the conduct of an officer of the Commission in relation to an election cases in which the Commission intervenes for the purpose of advancing a proposition for which it seeks curial confirmation to assist it in the discharge of its statutory functions cases where the Commission adopts a partisan stance supporting one party or another and cases where the Commission merely makes appropriate reference to the Act and to authority in order to assist the Court to determine a petition

It may be appropriate to make an order for or against the Commission in the first three categories of case but in the fourth category the Commission is engaged in the proper performance of a statutory function in the public interest The appearance of the Commission in such a case ought not to enlarge the risk of costs to the other parties to the proceedings Being incidental to the proper performance of its statutory functions the cost of being represented and heard ought properly to be borne as a cost of the Commissionrsquos administration This is such a case Expressing as I do appreciation of the considerable assistance that the Commission offered ndash not least in the preparation of an agreed statement of facts ndash it is appropriate to make no order with respect to the costs of the Commission

436 At the first directions hearing in the Sue petition on 15 March 1999 Chief Justice Gleeson indicated his intention to proceed only on the single issue raised by the first respondent Ms Hill in her various summonses of whether the petition complied with sections 355(a) and (aa) of the Electoral Act in providing sufficient facts and particulars to ground the petition His Honour was critical of the petitionerrsquos general claim of a breach of section 44(i) of the Constitution which simply repeated the text of the provision without making any effort to identify what aspects were relevant or at issue and described the petition as ldquoan uncritical spray levelled at the respondent by taking the language of the statute and not bothering to work out what your case really wasrdquo (transcript 15 March 1999 page 12)

437 The question then arose as to whether the petition could be amended to delete aspects of the petition which were not properly pleaded or which the petitioner did not intend to pursue Section 44(i) of the Constitution provides three categories of disqualification (Sykes v Cleary (1992) 176 CLR 77 at 109shy111) and the terms of the petition suggested that Ms Hill was in breach of all three categories even though the only fact presented in the petition that Ms Hill was at the relevant time a citizen of Great Britain appeared to be a breach only of the second category in section 44(i) His Honour heard submissions from all parties on whether the deletion of part of a petition amounted to amending a petition which precedent case law suggested was not permissible (Nile v Wood (1988) 167 CLR 133 at 137)

438 On 19 March 1999 Chief Justice Gleeson delivered his decision on whether the petition was in compliance with section 355 of the Electoral Act and if not whether it should be dismissed or struck out (Attachment 1) His Honour concluded that the petition would have been dismissed but for the exercise of the discretionary power in section 358(2) of the Electoral Act and ordered the petitioner Mr Sue to pay the costs of the respondentrsquos (Ms Hillrsquos) costs of the application even though the respondentrsquos application for dismissal of the petition was itself dismissed The petition was allowed to proceed on the terms that the petitioner was prevented from placing any further reliance on any allegations that fell within either the first or the third categories of disqualification in section 44(i) of the Constitution

439 On the same day in further directions Chief Justice Gleeson proposed that the Sue and the Sharples petitions should be managed separately at this stage Mr Sharples who was not represented had filed his petition in Brisbane and his petition was assigned to Justice Callinan to progress the matter in Brisbane

4310 Chief Justice Gleeson then stated his intention consistent with the wishes of the parties to refer the substantive questions arising under of the Sue petition to the Full Court of the High Court pursuant to section 18 of the Judiciary Act 1903 Assuming the power to state a case His Honour directed the parties to prepare a draft case stated for the consideration of the Full Court There was general agreement between the parties that the case stated would contain a number of questions but should at least include a question as to whether the petitioner had taken all ldquoreasonable stepsrdquo to renounce her citizenship of Great Britain according to the test provided in Sykes v Cleary and a question as to whether Great Britain is a ldquoforeign powerrdquo

4311 It was indicated that it was likely that the matter would be listed before the Full Court on 11 and 12 May 1999 in Canberra The proceedings would involve consideration of a Stated Case in the context of an Agreed Statement of Facts There was general agreement between the parties that the facts would be relatively few and the parties did not anticipate any disagreement as to the facts

4312 His Honour noted tentative agreement between the parties that if the petition were successful a recount would be the appropriate remedy and that the person placed second on the One Nation Partyrsquos group voting ticket would in all probability be the person who should be declared duly elected pursuant to section 360(1)(iv) of the Electoral Act His Honour suggested that that person Mr Len Harris would have to have an interest in the proceedings and might wish to be heard The matter was adjourned with costs in these preliminary proceedings

4313 On 29 March 1999 directions resumed before Chief Justice Gleeson and the draft Case Stated in the Sue petition was settled between the parties On 30 March 1999 His Honour signed the Case Stated with the following questions being referred to the Full Bench of the High Court

(a) Does s 354 of the Act validly confer upon the Court of Disputed Returns jurisdiction to determine the issues raised in the petition (b) Was the first respondent at the date of her nomination a subject or citizen of a foreign power within the meaning of s 44(i) of the Constitution (c) Was the first respondent duly elected at the election (d) If no to (c) was the election void absolutely (e) If no to (d) should the second respondent conduct a recount of the ballot papers cast for the election for the purposes of determining the candidate entitled to be elected to the place for which the first respondent was returned (f) Save for the otherwise dealt with by order who should pay the costs of the Stated Case and of the hearing of the Stated Case before the Full High Court

4314 On 1 April 1999 a directions hearing on the Sharples petition was held by Justice Callinan in Brisbane with Mr Sharples representing himself and Mr Templeton representing the respondent Ms Hill The AEC represented by Mr Maurice Swan of the Australian Government Solicitor was granted leave to enter an appearance as a party to the petition and the AEC thereby became the second respondent to the Sharples petition Justice Callinan indicated that he was inclined to follow the same course as set by Chief Justice Gleeson in the Sue petition and asked for an Agreed Statement of Facts and a draft Case Stated from the parties The matter was adjourned to 22 April 1999

4315 In negotiations between the parties on the preparation of the draft Statement of Facts and Case Stated the petitioner Mr Sharples expressed his substantial disagreement with the Statement of Facts in the Case Stated already concluded in the Sue petition proceedings despite the respondents (Ms Hill and the AEC) expressing the view that the Statement of Facts in the Case Stated in the Sharples petition proceedings should be the same (with the omission only of a paragraph that was peculiar to the Sue Case Stated)

4316 On 22 April in directions before Justice Callinan His Honour ruled on the various points of disagreement in the draft Statement of Facts in the Case Stated between the petitioner Mr Sharples and the two respondents Ms Hill and the AEC This resulted in the addition of the numbers of first preference votes ldquoabove the linerdquo and ldquobelow the linerdquo received by Ms Hill which Mr Sharples submitted would be pertinent to his argument for a Senate ldquoby-electionrdquo or fresh election However His Honour declined to make any changes to the questions in the Case Stated that were agreed in the Sue petition proceedings

4317 At the conclusion of the directions hearing Justice Callinan directed the parties to join in the preparation of a document to reflect the various amendments as ordered to the draft Statement of Facts in the Case Stated in the Sharples proceedings and directed that the amended document be submitted to him by 27 April for certification and referral to the Full Bench Costs in these preliminary proceedings were reserved

4318 Following these proceedings the petitioner Mr Sharples wrote various letters to the other parties expressing his dissatisfaction with the proceedings and filed an affidavit with the Court (which was not served on the other parties) complaining about the conduct of the other parties in negotiations In the event Justice Callinan certified the Case Stated and Statement of Facts in the Sharples petition proceedings and the matter was listed for hearing concurrently or consecutively with the Sue petition proceedings on 11-12 May

44 Substantive Proceedings in the Petitions

441 The hearing by the Full Bench of the High Court of the Case Stated in the Sue petition and the Case Stated in the Sharples petition took place on 11-12 May 1999 in Canberra and because of the number and length of submissions was extended on the second day for another day into 13 May

442 The first petitioner Mr Sue was represented by Mr Stephen Finch SC with Ms Elizabeth Collins The second petitioner Mr Sharples represented himself The first respondent to each petition Ms Heather Hill was represented by Mr Robert Ellicott QC and Mr David Rofe QC with Mr Anthony Tudehope The second respondent to each petition the AEC was represented by Mr Maurice Swan a barrister from the Australian Government Solicitor with considerable experience in disputed proportional representation elections The Attorney-General for the Commonwealth (Intervening) was represented by the Solicitor-General Mr David Bennett QC with Mr Nye Perram and Mr Christopher Ward

443 The first day of the hearing was occupied with the first question in the Case Stated ldquoDoes section 354 of the Act validly confer upon the Court of Disputed Returns jurisdiction to determine the issues raised in the petitionrdquo Counsel for the first respondent Ms Hill submitted that the purported conferral of power upon the Court under section 354 of the Electoral Act was invalid because it contravened the doctrine of separation of powers That is the determination of disputed elections and returns is ancillary to the legislative function of the Parliament and is not a judicial function

444 It was also submitted by Counsel for Ms Hill that even if the Court had jurisdiction to try the petition its powers did not extend to ruling upon whether the first respondent was incapable of being chosen by reason of section 44(i) of the Constitution That is when hearing a petition filed under Division 1 of Part XXII of the Electoral Act the Court is limited to consideration of alleged illegal practices per section 362 of the Act and Division 1 does not confer power on the Court to hear claims in a petition of constitutional disqualification

445 It was further submitted by Counsel for Ms Hill that the Courtrsquos power to consider whether a person was qualified to be a Member of Parliament arises only in Division 2 of Part XXII of the Electoral Act by means of a question referred to the Court by resolution of the relevant House of the Parliament This is why additional powers are conferred on the Court pursuant to section 379 of the Act Counsel for the first respondent relied on the judgment of Gaudron J in Hudson v Lee (1993) 115 ALR 343 where Her Honour held that section 362 of the Act was an ldquoexhaustive statementrdquo of the circumstances in which an election might be declared invalid or void in answer to a petition filed under Division 1 of Part XXII of the Act

446 In response Counsel for the petitioner Mr Sue and the Solicitor-General for the Commonwealth both submitted that the Court should not adopt such an unduly narrow reading of Part XXII of the Electoral Act The Solicitor-General submitted that the view expressed by Gaudron J in Hudson v Lee is limited to questions of misconduct and is authority only for the proposition that misconduct is not actionable unless it finds a source in section 362 of the Act The AEC made no submissions in relation to this first question in the Case Stated

447 The question whether the Court had jurisdiction to determine whether the first respondent Ms Hill was ldquoincapable of being chosenrdquo as a Senator by reason of section 44(i) of the Constitution inevitably drew the Court into the question whether it was sitting as the High Court of Australia and thus having the jurisdiction conferred on the High Court by the Constitution or whether it was sitting as a separate statutory Court namely the Court of Disputed Returns and thus having the jurisdiction conferred on it under Part XXII of the Electoral Act

448 The second question in the Case Stated ldquoWas the first respondent at the date of her nomination a subject or citizen of a foreign powerrdquo was dealt with in two parts whether the United Kingdom is a ldquoforeign powerrdquo for the purposes of section 44(i) of the Constitution and whether Ms Hill was a ldquosubject or citizenrdquo of the United Kingdom irrespective of whether the United Kingdom is a foreign power The AEC made no submissions in relation to this second question in the Case Stated

449 There was little disagreement between the parties concerned that when section 44(i) was enacted the framers of the Constitution did not envisage the phrase ldquoforeign powerrdquo to include the United Kingdom Indeed until 1948 and the passing of the Nationality and Citizenship Act 1948 citizenship of the United Kingdom was the norm for the majority of Australians

4410 Counsel for the first respondent Ms Hill submitted that as at 1900 the phrase ldquoforeign powerrdquo did not and was not intended to include the United Kingdom and that none of the events circumstances or legislative enactments since 1900 have converted the special and unique relationship between the Commonwealth of Australia and the United Kingdom into a relationship now between the Commonwealth and a ldquoforeign powerrdquo It was submitted that the relationship was like that between a parent and a child which forever binds the child to the parent

4411 In relation to whether Ms Hill was a ldquosubject or a citizenrdquo of the United Kingdom Counsel for Ms Hill endeavoured to distinguish the Courtrsquos decision in Sykes v Cleary (1992) 176 CLR 77 on the grounds that Ms Hill was at the time of her nomination an Australian citizen This it was submitted was enough to avoid the operation of section 44(i)

4412 In response Counsel for the petitioner Mr Sue and the Solicitor-General for the Commonwealth both submitted that the United Kingdom is a ldquoforeign powerrdquo for the purposes of section 44(i) of the Constitution Counsel for the petitioner further submitted that even if the United Kingdom was not a foreign power in 1900 and even if difficulties arise in identifying the exact point in time when it became a foreign power it can nevertheless be said with confidence that the emergence of Australia as an independent nation and the occurrence of various relevant events particularly the passage of the Australia Act 1986 mean that at least when Ms Hill was nominated for election the United Kingdom had truly become a ldquoforeign powerrdquo

4413 Finally Counsel for the petitioner Mr Sue and the Solicitor-General for the Commonwealth both submitted that at the date of her nomination Ms Hill held British citizenship and had not taken all reasonable (or any) steps to divest herself of that citizenship In particular she had not made the appropriate declaration of renunciation of that citizenship as per Sykes v Cleary That is if the United Kingdom is a ldquoforeign powerrdquo within the meaning of section 44(i) then Ms Hill was incapable of being chosen as a Senator

4414 In relation to the third question in the Case Stated ldquoWas the first respondent duly elected at the electionrdquo there was common ground between the parties that if the Court found that at the date of her nomination Ms Hill was incapable of being chosen as a Senator by reason of her being a subject or citizen of a foreign power then it must follow that the first respondent was not duly elected at the election

4415 In relation to the fourth question in the Case Stated ldquoIf the first respondent was not duly elected was the election absolutely voidrdquo the parties in Sue v Hill agreed with the submission by the Solicitor-General for the Commonwealth that this question should be answered in the negative that is the election should not be declared absolutely void and a recount would be the appropriate remedy However the second petitioner Mr Sharples submitted that the question should be answered in the positive and a ldquowhole new electionrdquo should be conducted

4416 In relation to the fifth question in the Case Stated ldquoIf the election should not be declared void absolutely should the second respondent conduct a recount of the ballot papers cast for the purpose of determining the candidate entitled to be declared electedrdquo Counsel for the AEC submitted that a recount of the ballot papers for the position of Ms Hill would be the most appropriate remedy per In re Wood (1988) 167 CLR 145 Counsel for the petitioner Mr Sue Counsel for the first respondent Ms Hill and the Solicitor-General for the Commonwealth agreed with the submissions of the AEC

4417 In response to questions from the Bench Counsel for the AEC further submitted that it was highly probable that a member of the same political party as Ms Hill would be elected in her place on a recount of the ballot papers That is a recount would probably elect Mr Len Harris of One Nation in place of Ms Hill of One Nation because around 99 of electors who voted 1 for Ms Hill voted 2 for Mr Harris the second candidate on the One Nation group voting ticket Nevertheless until the recount was actually conducted this remained an hypothetical proposition

4418 In opposition to the submissions of the AEC the second petitioner Mr Sharples submitted that the Court could not be absolutely confident that the votersrsquo original intentions would be reflected by a recount given the distribution of first preferences for Ms Hill above and below the line on the ballot papers He referred also to the fact that Ms Hill was elected third in a field of six whilst in the precedent case In re Wood Mr Wood was elected last in a field of twelve He submitted that a fresh election was therefore the most appropriate remedy The Court then ordered Counsel for the AEC to provide further written submissions on the different consequences that might flow from the different order in which Mr Wood was elected in 1988 and Ms Hill in 1998

4419 The further written submissions were filed by the AEC on 18 May 1999 and showed that in its amicus role the AEC had given early consideration as to whether the election of other candidates would be disturbed by a recount if Ms Hill were to be disqualified and had concluded that this was so unlikely that their involvement in the proceedings need not be suggested to the Court The AEC further submitted that the different order of election in the Wood and the Hill cases would not change the fact that Mr Harris of One Nation would most probably be elected on a recount to replace Ms Hill In the event Mr Sharples chose to file further written submissions in response to the further written submissions of the AEC in which he endeavoured to distinguish In re Wood and further argued the case for a fresh election

4420 The sixth and final question in the Case Stated was ldquoSave for those otherwise dealt with by order who should pay the costs of the Stated Case and of the hearing of the Stated Case before the Full High Courtrdquo Counsel for the petitioner Mr Sue submitted that if the petition was successful the first respondent Ms Hill should pay his costs Counsel for the first respondent Ms Hill submitted that the Commonwealth should pay her costs because the questions raised were ldquoof great contemporary importancerdquo Alternatively it was submitted that if the petition failed then her costs should be paid by the petitioner The AEC submitted that no costs order should be made against the AEC and sought no costs order against the other parties

4421 The Solicitor-General for the Commonwealth submitted that no costs order should be made against the Commonwealth (under section 360(4) of the Electoral Act) and sought no costs order against the other parties The submission that the Commonwealth should not pay the costs of the other parties was not well received by the Bench Justice Callinan called it ldquoan extraordinary submissionrdquo

4422 Justice Gaudron cavilled at the submission by the Solicitor-General on the grounds that ldquoone half of the argument at least is concerned with matters relating to the effect of the Act ndash perhaps more than one halfrdquo and went on to say that ldquodeficienciesrdquo in the Act ldquohave been drawn to the attention of the Commonwealth in litigation for many yearsrdquo yet ldquopeople have been content more or less to leave [the Act] as it is with little thought as to how it operatesrdquo (transcript 12 May 1999 pp 65-66)

4423 The Decision in the Petitions On 23 June 1999 the Full Bench of the High Court handed down its judgment in Sue v Hill (1999) 73 ALJR 1016 and Sharples v Hill (B49 of 1998 High Court 23 June 1999 unreported) (Attachment 2) The majority of the Court (Gleeson CJ Gaudron Gummow and Hayne JJ) answered the questions in the Case Stated as follows

(a) Does s 354 of the Act validly confer upon the Court of Disputed Returns jurisdiction to determine the issues raised in the petition

Answer Yes

(b) Was the first respondent at the date of her nomination a subject or citizen of a foreign power within the meaning of s 44(i) of the Constitution

Answer Yes

(c) Was the first respondent duly elected at the election

Answer No

(d) If no to (c) was the election void absolutely

Answer No

(e) If no to (d) should the second respondent conduct a recount of the ballot papers cast for the election for the purposes of determining the candidate entitled to be elected to the place for which the first respondent was returned

Answer Inappropriate to answer

(f) Save for the otherwise dealt with by order who should pay the costs of the Stated Case and of the hearing of the Stated Case before the Full High Court

Answer The Commonwealth should pay the costs of the petitioner and the first respondent The second respondent should bear its own costs

4424 In delivering the judgment of the Court in the Sue v Hill and the Sharples v Hill petitions Chief Justice Gleeson made the following summary

In these two cases which were commenced in the Court of Disputed Returns the election of Mrs Hill as a Senator for the State of Queensland was challenged on the ground that at the date of her nomination she was incapable of being chosen as a Senator The specific ground of disqualification alleged was related to section 44(i) of the Constitution and was that at the date of nomination Mrs Hill was a subject or citizen of a foreign power namely the United Kingdom

The members of the Court who constituted the Court of Disputed Returns in each case raised certain questions for the decision of the full High Court

The first question was whether the Court of Disputed Returns has the jurisdiction invoked by the respective petitioners that is to say jurisdiction under Division 1 of Part XXII of the Commonwealth Electoral Act 1918 to consider a challenge to an election based solely on the ground of disqualification under section 44 of the Constitution Four members of the Court (Gleeson CJ Gaudron Gummow and Hayne JJ) have answered that question in the affirmative holding that there is jurisdiction Three members of the Court (McHugh Kirby Callinan JJ) have answered the question in the negative holding that jurisdiction does not exist

The three members of the Court who held that there was no jurisdiction of the kind invoked did not for that reason go on to answer the remaining questions

The four members of the Court who held that there is jurisdiction dealt with the remaining questions as follows

(a) The United Kingdom is a foreign power within the meaning of section 44 of the Constitution (b) At the time of her nomination Mrs Hill was a subject or citizen of a foreign power and was therefore incapable of being chosen as a Senator (c) Mrs Hill was therefore not duly elected (d) The consequence is not that the entire election of Senators for Queensland was void absolutely

Those four members of the Court were of the opinion that there should be a recount

As to the manner and extent of such recount these are matters upon which persons who have not been represented in the proceedings might wish to have the opportunity of being heard Accordingly each case has been remitted to the Court of Disputed Returns In the case of Sue v Hill the Court will sit at 930 am tomorrow for the purpose of considering the future course of the proceedings and if necessary giving directions

It was ordered that the Commonwealth should pay the costs of the petitioners and Mrs Hill

4425 The conclusion by the Court that other persons involved in the Queensland Senate election should be heard on the manner and extent of a recount was in response to the submissions made by Mr Sharples that the result of a recount as hypothesised by the AEC (the election of Mr Len Harris of One Nation to replace Ms Hill) might not transpire and the election or nonshyelection of the other candidates might be disturbed At paragraph 179 of the decision Justice Gaudron expanded on the doubts about the outcome of a recount that were raised in the Court by Mr Sharplesrsquo submissions

Although nothing was put to suggest that the true intention of the voters cannot be ascertained by a recount it emerged at the hearing that there was a real question as to the manner in which the recount should be conducted As formulated question (e) posits that a recount should be conducted only for the third Senate position However it is possible that a recount of all votes might have consequences for the fourth fifth and sixth Senators Those persons were not represented at the hearing It may be that that was because having regard to the terms of question (e) they were of the view that their positions would not be affected by a recount In the circumstances the appropriate course is to answer question (e) in each of the cases stated ldquoInappropriate to answerrdquo leaving the issue to be determined by a single Justice after hearing such submission if any as the persons returned as the fourth fifth and sixth Senators wish to make

45 Later Proceedings in the Petitions

451 On 24 June 1999 Chief Justice Gleeson sat as the Court of Disputed Returns to further progress the issues about the manner and extent of a recount The petitioner Mr Sue was represented by Ms Collins the first respondent Ms Hill was represented by Mr Templeton the second respondent the AEC was represented by Mr Swan of AGS and Mr Burmester QC appeared for the Attorney-General for the Commonwealth (Intervening) In addition two other persons involved in the election appeared Senator-elect Mason was represented by Mr Shannon and Senator OrsquoChee was represented by Mr Saunders

452 His Honour indicated from the outset that the purpose of the hearing was to address the concerns detailed in paragraph 179 of Justice Gaudronrsquos judgment namely that everyone who had a possible interest in a recount be given an opportunity to be heard His Honour identified three categories of such persons First Mr Len Harris the second candidate on the One Nation group voting ticket second the candidates elected in the fourth fifth and sixth positions for the Queensland Senate and third any non-elected candidate who might possibly replace any of the candidates elected to the fourth fifth and sixth positions Counsel for the AEC identified Ms Jann Piasecki Mr Drew Hutton Senator OrsquoChee and Mr John Bradford as persons who might have an interest within the categories set by the Chief Justice

453 His Honour then directed that a letter be sent immediately by the AEC to Senator-elect Ludwig Senator Woodley Mr John Bradford Mr Len Harris Ms Jann Piasecki and Mr Drew Hutton drawing their attention to the petition and the decision of the Court advising the intention to conduct a recount and that they had the opportunity to address the Court on the manner and extent of that recount

454 The Court was advised by Counsel for the AEC that if a recount was ordered by the Court it would be done by computer as permitted by section 273A of the Electoral Act and could be done the following day in approximately 45 minutes subject to the availability of scrutineers for the interested parties

455 Towards the end of these proceedings Counsel for the first respondent Ms Hill indicated that on the finding by the Full Bench that Ms Hill was not duly elected his client no longer had any interest in the proceedings He was therefore granted leave to be excused from further appearance and was not present for the costs orders at the end of these proceedings

456 On 29 June 1999 proceedings resumed before Chief Justice Gleeson by reference to a Notice of Motion of 28 June 1999 filed by the AEC setting out proposed orders and attaching a schedule for the conduct of a recount as follows

(1) A vote indicated on a ballot paper opposite the name of Heather Hill be counted to the candidate next in the order of the voterrsquos preference and the numbers indicating subsequent preferences be treated as altered accordingly (2) The further counting and recounting be conducted subject to direction (1) as nearly as practicable in accordance with the relevant provisions of section 273A of the Commonwealth Electoral Act 1918 (ldquothe Actrdquo) as if there were 6 vacancies to be filled (3) The further counting and recounting identify which candidate is entitled to be elected to the third place left unfilled by the ineligibility of Heather Hill (4) The further counting and recounting identify which (if any) candidate or candidates other than Mr Ludwig Mr Mason or Senator Woodley is or are entitled to be elected in the place of Mr Ludwig Mr Mason or Senator Woodley to any of the fourth fifth or sixth places to be filled (5) Notwithstanding direction (1) any ballot paper ruled to be informal during the 1998 scrutiny be treated as informal in the further counting and recounting (6) Notwithstanding direction (1) any ballot paper ruled to be formal during the 1998 scrutiny be treated as formal in the further counting and recounting except where a ballot paper is marked with a first preference for Heather Hill followed by the marking of a second preference for each of 2 or more other candidates (7) Notwithstanding direction (1) any ballot paper showing the same preference for Heather Hill and one or more other continuing candidates be set aside as exhausted in accordance with subsection 273(26) at the point in the scrutiny at which it would have been set aside had Heather Hill been a candidate eligible for election (8) Ballot papers marked with group voting ticket votes not be counted again but that the group voting tickets figures ascertained in the 1998 scrutiny be adjusted in accordance with direction (1) for the purposes of the further counting and recounting

457 The petitioner Mr Sue was represented by Ms Tait the second respondent the AEC was represented by Mr Swan of AGS and the Attorney-General for the Commonwealth (Intervening) was represented by Mr Burmester QC A number of other parties sought leave to intervene Mr Harris the second candidate on the One Nation group voting ticket was represented by Mr Gageler Senator Woodley was represented by Mr Davey Senator-elect Mason was represented by Mr Wood and Senator OrsquoChee was represented by Mr Applegarth An affidavit of 29 June of Mr McCarthy for the AEC testified to the notification of these parties by the AEC as ordered at the previous proceedings

458 An affidavit of 28 June of Mr Spelman of the AEC which was read to the Court by Mr Swan for the AEC advised the appropriateness of a full recount computerised in accordance with section 273A of the Electoral Act and in accordance with the directions in the schedule attached to the proposed orders and the inappropriateness of a recount that did not take into account all formal votes cast in the election

459 A full recount as proposed by the AEC was supported by Senator Woodley Senator-elect Mason Senator OrsquoChee Mr Harris and the Attorney-General on the basis that the recount would resolve whether any questions arose about disturbing the election or non-election of other candidates and that the conduct of the recount would not pre-empt any submissions they might make regarding the form of any resultant orders His Honour then ordered the AEC to conduct a full recount according to the schedule and report back to the Court with the results Costs in these proceedings were reserved

4510 On 2 July 1999 proceedings resumed before Chief Justice Gleeson with the same appearances as for 29 July with the exception that (now) Senator Mason and (now) Mr OrsquoChee were represented by Mr Wood An affidavit of 30 June of Mr Spelman of the AEC which was read to the Court by Mr Swan for the AEC advised the outcome of the full recount which was that Mr Harris achieved a quota in place of Ms Hill and the other candidates elected were unchanged from those elected at the original election

4511 With respect to costs in these later proceedings Mr Swan for the AEC and Mr Burmester for the Attorney-General submitted that each party should bear their own costs The other parties present (with the first respondent Ms Hill now absent) submitted that the Commonwealth should pay their costs under section 360(4) of the Electoral Act

4512 His Honour formally granted leave to intervene to Mr OrsquoChee Senator Mason Senator Woodley and Mr Harris and then ordered

1 That Heather Hill was not duly elected at the election held on 3 October 1998 2 That Mr Len Harris be declared duly elected as a Senator for the State of Queensland in the place for which Heather Hill was returned 3 That the second respondent and the Attorney-General for the Commonwealth each bear their own costs 4 That the Commonwealth pay the costs of the petitioner Senator Woodley Senator Mason Mr OrsquoChee and Mr Harris and their costs on previous occasions which have been reserved 5 Certify for counsel

4513 Lastly His Honour noted that Mr Sharples was not present and directed that his petition be re-listed before Justice Callinan to make such orders as he thought appropriate having regard to proceedings in the Sue petition

4514 On 29 July 1999 proceedings in the Sharples petition resumed before Justice Callinan The petitioner Mr Sharples represented himself the first respondent Ms Hill did not appear the second respondent the AEC was represented by Mr Swan of AGS the Attorney-General (Intervening) did not appear and on the question of costs the Commonwealth was represented by Mr Belcher of AGS (instructed by the AEC)

4515 His Honour ordered that

1 The petition be dismissed 2 The second respondent bear its own costs 3 The Commonwealth pay the costs of the petitioner of todayrsquos proceedings and of previous occasions on which costs were reserved

4516 The outcome on costs for both petitions was that under section 360(4) of the Electoral Act the Commonwealth was ordered to pay the costs on a partyparty basis of all the parties (except the Attorney-General and the AEC) in the proceedings extending over a period of some six months and involving numerous counsel and senior counsel Whilst the public interest in these petitions was properly served in all proceedings the award of costs against the Commonwealth will amount to a substantial cost to the public purse

4517 The AEC has now been advised by the Constitutional Unit of the Australian Government Solicitor and the Department of Finance and Administration that the costs awarded against the Commonwealth are the responsibility of the AEC There is no suggestion that the AEC was at fault in the conduct of the election or proceedings on the petitions

5 Implications of the Sue and Sharples Decisions

51 Jurisdiction of the Court of Disputed Returns

511 The majority judgment of the High Court (Gleeson CJ Gaudron Gummow and Hayne JJ) in the SueSharples petitions held that section 354 of the Electoral Act validly conferred jurisdiction upon the Court of Disputed Returns to determine the constitutional question raised in the petitions namely whether Ms Heather Hill was disqualified from being elected under section 44(i) of the Constitution

512 That is it has been concluded that the Court of Disputed Returns has jurisdiction to hear petitions raising questions of constitutional disqualifications filed under Division 1 of Part XXII of the Electoral Act The corollary is that the jurisdiction of the Court of Disputed Returns to hear questions of constitutional qualifications is not limited to matters referred to the Court by the Parliament under Division 2 of Part XXII the Electoral Act

513 The jurisdictional decision in the SueSharples petitions is in accordance with the conduct of proceedings in 1992 in Sykes v Cleary (1992) 176 CLR 77 which was initiated by way of a petition filed by Mr Ian Sykes under Division 1 of Part XXII of the Electoral Act The Sykes v Cleary decision resulted in the disqualification of Mr Phil Cleary under section 44(iv) of the Constitution for holding an office of profit under the Crown at the time of his nomination and a finding that other candidates in the by-election for the Division of Wills Mr Kardamitisis (ALP) and Mr Delacretaz (Liberal Party) were disqualified under section 44(i) of the Constitution for holding dual citizenship with Greece and Switzerland respectively

514 The jurisdictional decision in the SueSharples petitions is also in accordance with the conduct of proceedings in 1996 in Free v Kelly (1996) 70 ALJR 809 which was initiated by way of a petition filed by Mr Ross Free under Division 1 of Part XXII of the Electoral Act The Free v Kelly decision resulted in the disqualification of Ms Jackie Kelly under section 44(iv) of the Constitution for holding an office of profit under the Crown at the time of her nomination

515 The history of the separation of powers between the Parliament and the Judiciary in relation to such matters begins with the commencement of the Commonwealth in 1901 when section 47 of the Constitution prevailed

Until the Parliament otherwise provides any question respecting the qualifications of a senator or of a member of the House of Representatives or respecting a vacancy in either House of the Parliament and any question of a disputed election to either House shall be determined by the House in which the question arises

516 The Parliament then otherwise provided in sections 192-206 of the Commonwealth Electoral Act 1902 to the effect that the validity of any disputed election or return was to be decided by the High Court sitting as the Court of Disputed Returns

517 Further in section 6 of the Commonwealth Electoral Act 1907 the Parliament provided that any question on the qualifications of Members of Parliament or on a vacancy in the Parliament could be referred to the Court by resolution of the House of the Parliament in which the question arose In 1918 these two Acts were consolidated into the Commonwealth Electoral Act 1918 and now appear as Divisions 1 and 2 of Part XXII of the Electoral Act

518 The most recent example of the referral by the Parliament of a question concerning the qualifications of a Member of Parliament is the case of Senator Robert Wood in 1988 when the Senate referred the question of his qualifications by way of Division 2 of Part XXII of the Electoral Act to the Court of Disputed Returns Senator Wood was subsequently found to be disqualified by section 163 of the Electoral Act because he was not an Australian citizen

519 During the course of the 1999 proceedings in the SueSharples petitions the matter of Mr Warren Entsch MP and his alleged disqualification under section 44(v) of the Constitution was raised in the Parliament On 10 June 1999 the Leader of the Opposition moved in the House of Representatives

That the following question be referred to the Court of Disputed Returns for determination pursuant to section 376 of the Commonwealth Electoral Act 1918 Whether the place of the honourable Member for Leichhardt (Mr Entsch) has become vacant pursuant to the provisions of section 44(v) of the Constitution

5110 In response the Attorney-General moved in the House of Representatives that the motion be amended to read as follows

That the House determines that the member for Leichhardt does not have any direct or indirect pecuniary interest with the Public Service of the Commonwealth within the meaning of section 44(v) of the Constitution by reason of any contract entered into by Cape York Concrete Pty Ltd since 3 October 1998 and the member for Leichhardt is therefore not incapable of sitting as a member of this House

5111 The amendment moved by the Attorney-General was resolved in the affirmative That is in the Entsch matter the House of Representatives resolved not to refer the question of the constitutional qualifications of the Member for Leichhardt to the Court of Disputed Returns for consideration but instead resolved itself that he was not so disqualified This action asserted the right of the Parliament to make determinations on the constitutional qualifications of its own members without the involvement of the Judiciary

5112 It could be suggested that such determinations about constitutional qualifications made on the numbers in the relevant House of the Parliament might not be entirely disinterested at a political level And it might appear that anyone other than a Member of Parliament who wishes to challenge the constitutional qualifications of a sitting Member is foreclosed from doing so by the time limitation in section 355(e) of the Electoral Act which provides that a petition must be filed with the High Court within 40 days of the return of the writ for the relevant election

5113 However in those circumstances where the elected Parliament has already formed and the petition filing period has passed the Common Informers (Parliamentary Disqualifications) Act 1975 enables any person to sue the High Court for the payment of $200 per day for the period during which a Member of Parliament sits while being disqualified after being served with the originating process and the sum of $200 only in respect of a past breach The Act restricts such suits to a period no earlier than 12 months before the day on which the suit is instituted In relation to the Entsch matter this would mean that for any common informers action to be instituted Mr Entsch must have been disqualified as alleged within the 12 months preceding the date on which the suit was filed

5114 The most significant issues arising from the related matters discussed above would appear to be twofold

(a) whether the Electoral Act should continue to provide that the constitutional qualifications of Members of Parliament can be disputed by way of petition from any elector or candidate to the Court of Disputed Returns within 40 day days of the return of the writ for the election

(b) whether in the absence of either a referral to the Court of Disputed Returns by the House affected or a petition to the Court within 40 days of the return of the writ for the election or a common informerrsquos suit the Parliament should retain its authority to decide on the constitutional qualifications of its own members

5115 These issues arise out of the dispute resolution scheme provided for in the Electoral Act by the Parliament in the early part of this century and have not before been given direct consideration by the JSCEM since the major amendments to the Electoral Act in 1983 However given that these questions also go to the separation of powers between the Parliament and Judiciary and may therefore require considered submissions from all interested parties the AEC makes the following recommendation

Recommendation 1 That the JSCEM seek a reference to inquire into the powers and functions of the Australian Electoral Commission as expressed in Part II of the Electoral Act and Part I of the Referendum Act and the powers and functions of the Court of Disputed Returns as expressed in Part XXII of the Electoral Act and in Part VIII of the Referendum Act

5116 The recommendation includes reference to the powers and functions of the AEC in the context of the issues raised in part 53 below

52 Constitutional Disqualifications

521 The decision of the High Court in the SueSharples petitions was that any candidate who is a subject or citizen of a foreign power such as the United Kingdom is disqualified at the time of nomination from election to the Parliament That is Ms Heather Hill was disqualified from being elected under section 44(i) of the Constitution

522 This decision was made by the majority members of the Court (Gleeson CJ Gaudron Gummow and Hayne JJ) after they had decided that the Court of Disputed Returns had jurisdiction to hear the petition The other members of the Court (McHugh Kirby and Callinan JJ) who decided that the Court of Disputed Returns had no jurisdiction to hear the petition were not required to form a view on the constitutional qualifications question

523 This decision of the High Court on the interpretation of section 44(i) of the Constitution represents a highly significant statement about the constitutional relationship between the United Kingdom and Australia and in particular makes it very clear that persons holding dual citizenship with the United Kingdom are as equally subject to the constitutional disqualification as persons holding dual citizenship with any other foreign power

524 This may not have been clearly apparent from Sykes v Cleary in 1992 for example where after finding that Mr Phil Cleary was disqualified under section 44(iv) of the Constitution the Court went on to apply section 44(i) of the Constitution to two other candidates Mr Kardamitsis (ALP) and Mr Delacretaz (Liberal Party) who held dual citizenship with Greece and Switzerland respectively and found that they would have also been disqualified Although the Court indicated that all ldquoreasonable stepsrdquo should be taken by candidates to divest themselves of dual citizenship a doubt may have remained after this case as to whether this rule applied equally to British subjects The judgment in the SueSharples petitions should now remove any such doubts

525 However in its publications provided to intending candidates since the 1992 Sykes v Cleary decision the AEC did not find it necessary to make any such distinctions between the United Kingdom and other foreign powers in warning intending candidates to take reasonable steps to divest themselves of dual citizenship before nomination

526 For example on 17 July 1999 some three months before the 1998 federal election the AEC published Electoral Backgrounder No 4 entitled ldquoCandidate Disqualifications Section 44 of the Constitutionrdquo which provided a detailed discussion of the constitutional disqualifications for candidates at federal elections The AEC included information on how British subjects could divest themselves of dual citizenship in paragraph 27 This Backgrounder was made available to the public in hard copy from all AEC offices on the AEC Internet site (wwwaecgovau) and was provided to all candidates as part of the AEC ldquoCandidates Information Kitrdquo

4 Proceedings in Sue v Hill and Sharples v Hill

41 The Sue v Hill Petition

411 On 1 December 1998 Mr Henry (Nai Leung) Sue filed a petition in the Sydney Registry of the High Court disputing the election of Ms Heather Hill of Pauline Hansonrsquos One Nation Party for the Queensland Senate at the 1998 federal election In his petition Mr Sue asserted his entitlement to vote at the Queensland Senate election and made the following allegations

As at the date of her nomination the Respondent was under an acknowledgement of allegiance obedience or adherence to a foreign power or was a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power within the meaning of section 44(i) of the ConstitutionhellipThe foreign power is BritainhellipAs such the Respondent was incapable of being chosen or sitting as a Senator

412 The petitioner Mr Sue asked the Court to declare that the respondent Ms Hill was not capable of being chosen as a Senator and was not duly elected as a Senator The petitioner also asked the Court to order the Australian Electoral Officer for Queensland to conduct a recount of the Queensland Senate ballot papers in order to find a replacement candidate to be elected instead of Ms Hill Finally the petitioner asked the Court to order that the respondent Ms Hill pay his costs

413 The request by the petitioner for a recount of the Senate ballot papers to find a replacement for Ms Hill from the candidates at the election was in line with precedent set in the Re Wood cases in 1988 which resulted in a recount of the ballot papers for Senator Woodrsquos vacated position after he was disqualified under section 163 of the Electoral Act for not being an Australian citizen at the time of his election and the election of Senator Irina Dunn of the Nuclear Disarmament Party the same Senate group as Senator Wood (see Re Wood (1988) 167 CLR 145 Re Wood [No 2] (1988) 62 ALJR 377 Re Wood [No 3] (1988) 62 ALJR 638 and for further discussion of Senate recounts see paragraphs 453 to 455 in AEC submission No 210 of 23 July 1999)

42 The Sharples v Hill Petition

421 On 2 December 1998 Mr Terry Sharples filed a petition in the Brisbane Registry of the High Court also disputing the election of Ms Heather Hill for the Queensland Senate In his petition Mr Sharples asserted his entitlement to vote at the Queensland Senate election and made the following allegations

The Respondent is by birth a British subject and under allegiance obedience and adherence to the laws of the United KingdomhellipThe respondent immigrated to Australia and has lived in Australia since that date She holds a passport as a British subject which is still currenthellipAustralian law does not recognise British subjects who are domicile or resident as citizens The respondent applied for Australian citizenship in or about April 1998

422 The petitioner Mr Sharples asked the Court to void the election of Ms Hill to order the Queensland Governor to issue a writ for an election to fill the Senate position and to order the Commonwealth to pay his costs Mr Sharples was known to be a disaffected One Nation Party member who was apparently seeking a fresh Senate election or a ldquoby-electionrdquo so as to reduce the possibility of another candidate from the One Nation Senate group replacing Ms Hill which would be the likely outcome of a recount

43 Preliminary Proceedings in the Petitions

431 On 2 and 25 February 1999 solicitors for the respondent Ms Hill Watkins Stokes Templeton filed with the Court a summons and an amended summons seeking the dismissal or striking out of the petition on the following grounds

(a) that the petition did not comply with section 355(a) and (aa) of the Electoral Act because it did not set out the facts relied on in sufficient particularity (b) that the petitioner had failed to publish the petition in the Commonwealth Gazette as required by Order 68 Rule 3 of the High Court Rules (later done and acknowledged) and (c) that the Court of Disputed Returns is not empowered to declare the respondent not capable of being elected or not duly elected

432 On 10 March 199 solicitors for the respondent Ms Hill filed a further amended summons again seeking dismissal of the petition on the above grounds but also seeking the referral to the Full Bench of the High Court a question on the jurisdiction of the Court

hellip in the event that the respondent does not establish any of the grounds in (a) (b) and (c) above the respondent seeks an order that there be referred to the Full Court the following constitutional issue

That the purported vesting in the High Court of Australia by s 354 of the Commonwealth Electoral Act 1918 of the power to try petitions and determine the validity of any election or return is contrary to the separation of powers between the Executive Legislative and Judiciary contained in the Constitution and is therefore invalid

433 At a directions hearing on 15 March 1999 before Chief Justice Gleeson of the High Court the petitioner Mr Sue was represented by Mr Stephen Finch SC the respondent Ms Hill was represented by Mr David Rofe QC The AEC represented by Mr Geoffrey McCarthy of the Australian Government Solicitor sought and was granted leave to enter an appearance as a party to the petition The AEC thereby became the second respondent to the Sue petition

434 Where the AEC is not expressly named as respondent in an election petition the AEC normally seeks leave to join as a party an entitlement provided for in section 359 of the Electoral Act in order to make submissions on the facts of the election under dispute and submissions on the appropriate relief or remedy should the petition succeed The AEC does not make submissions on constitutional issues raised in petitions as this is more appropriately for the Attorney-General for the Commonwealth who is entitled to intervene under section 78A of the Judiciary Act 1903 where constitutional issues are agitated in the High Court

435 In its amicus role in election petitions the AEC does not seek costs against other parties and does not expect costs to be awarded against it as detailed in the decision of Brennan CJ in Free v Kelly (1996) 70 ALJR 809 at 812

The Commission may be represented and heard under s 359 in at least four categories of cases cases where the Commission seeks to defend the conduct of an election or the conduct of an officer of the Commission in relation to an election cases in which the Commission intervenes for the purpose of advancing a proposition for which it seeks curial confirmation to assist it in the discharge of its statutory functions cases where the Commission adopts a partisan stance supporting one party or another and cases where the Commission merely makes appropriate reference to the Act and to authority in order to assist the Court to determine a petition

It may be appropriate to make an order for or against the Commission in the first three categories of case but in the fourth category the Commission is engaged in the proper performance of a statutory function in the public interest The appearance of the Commission in such a case ought not to enlarge the risk of costs to the other parties to the proceedings Being incidental to the proper performance of its statutory functions the cost of being represented and heard ought properly to be borne as a cost of the Commissionrsquos administration This is such a case Expressing as I do appreciation of the considerable assistance that the Commission offered ndash not least in the preparation of an agreed statement of facts ndash it is appropriate to make no order with respect to the costs of the Commission

436 At the first directions hearing in the Sue petition on 15 March 1999 Chief Justice Gleeson indicated his intention to proceed only on the single issue raised by the first respondent Ms Hill in her various summonses of whether the petition complied with sections 355(a) and (aa) of the Electoral Act in providing sufficient facts and particulars to ground the petition His Honour was critical of the petitionerrsquos general claim of a breach of section 44(i) of the Constitution which simply repeated the text of the provision without making any effort to identify what aspects were relevant or at issue and described the petition as ldquoan uncritical spray levelled at the respondent by taking the language of the statute and not bothering to work out what your case really wasrdquo (transcript 15 March 1999 page 12)

437 The question then arose as to whether the petition could be amended to delete aspects of the petition which were not properly pleaded or which the petitioner did not intend to pursue Section 44(i) of the Constitution provides three categories of disqualification (Sykes v Cleary (1992) 176 CLR 77 at 109shy111) and the terms of the petition suggested that Ms Hill was in breach of all three categories even though the only fact presented in the petition that Ms Hill was at the relevant time a citizen of Great Britain appeared to be a breach only of the second category in section 44(i) His Honour heard submissions from all parties on whether the deletion of part of a petition amounted to amending a petition which precedent case law suggested was not permissible (Nile v Wood (1988) 167 CLR 133 at 137)

438 On 19 March 1999 Chief Justice Gleeson delivered his decision on whether the petition was in compliance with section 355 of the Electoral Act and if not whether it should be dismissed or struck out (Attachment 1) His Honour concluded that the petition would have been dismissed but for the exercise of the discretionary power in section 358(2) of the Electoral Act and ordered the petitioner Mr Sue to pay the costs of the respondentrsquos (Ms Hillrsquos) costs of the application even though the respondentrsquos application for dismissal of the petition was itself dismissed The petition was allowed to proceed on the terms that the petitioner was prevented from placing any further reliance on any allegations that fell within either the first or the third categories of disqualification in section 44(i) of the Constitution

439 On the same day in further directions Chief Justice Gleeson proposed that the Sue and the Sharples petitions should be managed separately at this stage Mr Sharples who was not represented had filed his petition in Brisbane and his petition was assigned to Justice Callinan to progress the matter in Brisbane

4310 Chief Justice Gleeson then stated his intention consistent with the wishes of the parties to refer the substantive questions arising under of the Sue petition to the Full Court of the High Court pursuant to section 18 of the Judiciary Act 1903 Assuming the power to state a case His Honour directed the parties to prepare a draft case stated for the consideration of the Full Court There was general agreement between the parties that the case stated would contain a number of questions but should at least include a question as to whether the petitioner had taken all ldquoreasonable stepsrdquo to renounce her citizenship of Great Britain according to the test provided in Sykes v Cleary and a question as to whether Great Britain is a ldquoforeign powerrdquo

4311 It was indicated that it was likely that the matter would be listed before the Full Court on 11 and 12 May 1999 in Canberra The proceedings would involve consideration of a Stated Case in the context of an Agreed Statement of Facts There was general agreement between the parties that the facts would be relatively few and the parties did not anticipate any disagreement as to the facts

4312 His Honour noted tentative agreement between the parties that if the petition were successful a recount would be the appropriate remedy and that the person placed second on the One Nation Partyrsquos group voting ticket would in all probability be the person who should be declared duly elected pursuant to section 360(1)(iv) of the Electoral Act His Honour suggested that that person Mr Len Harris would have to have an interest in the proceedings and might wish to be heard The matter was adjourned with costs in these preliminary proceedings

4313 On 29 March 1999 directions resumed before Chief Justice Gleeson and the draft Case Stated in the Sue petition was settled between the parties On 30 March 1999 His Honour signed the Case Stated with the following questions being referred to the Full Bench of the High Court

(a) Does s 354 of the Act validly confer upon the Court of Disputed Returns jurisdiction to determine the issues raised in the petition (b) Was the first respondent at the date of her nomination a subject or citizen of a foreign power within the meaning of s 44(i) of the Constitution (c) Was the first respondent duly elected at the election (d) If no to (c) was the election void absolutely (e) If no to (d) should the second respondent conduct a recount of the ballot papers cast for the election for the purposes of determining the candidate entitled to be elected to the place for which the first respondent was returned (f) Save for the otherwise dealt with by order who should pay the costs of the Stated Case and of the hearing of the Stated Case before the Full High Court

4314 On 1 April 1999 a directions hearing on the Sharples petition was held by Justice Callinan in Brisbane with Mr Sharples representing himself and Mr Templeton representing the respondent Ms Hill The AEC represented by Mr Maurice Swan of the Australian Government Solicitor was granted leave to enter an appearance as a party to the petition and the AEC thereby became the second respondent to the Sharples petition Justice Callinan indicated that he was inclined to follow the same course as set by Chief Justice Gleeson in the Sue petition and asked for an Agreed Statement of Facts and a draft Case Stated from the parties The matter was adjourned to 22 April 1999

4315 In negotiations between the parties on the preparation of the draft Statement of Facts and Case Stated the petitioner Mr Sharples expressed his substantial disagreement with the Statement of Facts in the Case Stated already concluded in the Sue petition proceedings despite the respondents (Ms Hill and the AEC) expressing the view that the Statement of Facts in the Case Stated in the Sharples petition proceedings should be the same (with the omission only of a paragraph that was peculiar to the Sue Case Stated)

4316 On 22 April in directions before Justice Callinan His Honour ruled on the various points of disagreement in the draft Statement of Facts in the Case Stated between the petitioner Mr Sharples and the two respondents Ms Hill and the AEC This resulted in the addition of the numbers of first preference votes ldquoabove the linerdquo and ldquobelow the linerdquo received by Ms Hill which Mr Sharples submitted would be pertinent to his argument for a Senate ldquoby-electionrdquo or fresh election However His Honour declined to make any changes to the questions in the Case Stated that were agreed in the Sue petition proceedings

4317 At the conclusion of the directions hearing Justice Callinan directed the parties to join in the preparation of a document to reflect the various amendments as ordered to the draft Statement of Facts in the Case Stated in the Sharples proceedings and directed that the amended document be submitted to him by 27 April for certification and referral to the Full Bench Costs in these preliminary proceedings were reserved

4318 Following these proceedings the petitioner Mr Sharples wrote various letters to the other parties expressing his dissatisfaction with the proceedings and filed an affidavit with the Court (which was not served on the other parties) complaining about the conduct of the other parties in negotiations In the event Justice Callinan certified the Case Stated and Statement of Facts in the Sharples petition proceedings and the matter was listed for hearing concurrently or consecutively with the Sue petition proceedings on 11-12 May

44 Substantive Proceedings in the Petitions

441 The hearing by the Full Bench of the High Court of the Case Stated in the Sue petition and the Case Stated in the Sharples petition took place on 11-12 May 1999 in Canberra and because of the number and length of submissions was extended on the second day for another day into 13 May

442 The first petitioner Mr Sue was represented by Mr Stephen Finch SC with Ms Elizabeth Collins The second petitioner Mr Sharples represented himself The first respondent to each petition Ms Heather Hill was represented by Mr Robert Ellicott QC and Mr David Rofe QC with Mr Anthony Tudehope The second respondent to each petition the AEC was represented by Mr Maurice Swan a barrister from the Australian Government Solicitor with considerable experience in disputed proportional representation elections The Attorney-General for the Commonwealth (Intervening) was represented by the Solicitor-General Mr David Bennett QC with Mr Nye Perram and Mr Christopher Ward

443 The first day of the hearing was occupied with the first question in the Case Stated ldquoDoes section 354 of the Act validly confer upon the Court of Disputed Returns jurisdiction to determine the issues raised in the petitionrdquo Counsel for the first respondent Ms Hill submitted that the purported conferral of power upon the Court under section 354 of the Electoral Act was invalid because it contravened the doctrine of separation of powers That is the determination of disputed elections and returns is ancillary to the legislative function of the Parliament and is not a judicial function

444 It was also submitted by Counsel for Ms Hill that even if the Court had jurisdiction to try the petition its powers did not extend to ruling upon whether the first respondent was incapable of being chosen by reason of section 44(i) of the Constitution That is when hearing a petition filed under Division 1 of Part XXII of the Electoral Act the Court is limited to consideration of alleged illegal practices per section 362 of the Act and Division 1 does not confer power on the Court to hear claims in a petition of constitutional disqualification

445 It was further submitted by Counsel for Ms Hill that the Courtrsquos power to consider whether a person was qualified to be a Member of Parliament arises only in Division 2 of Part XXII of the Electoral Act by means of a question referred to the Court by resolution of the relevant House of the Parliament This is why additional powers are conferred on the Court pursuant to section 379 of the Act Counsel for the first respondent relied on the judgment of Gaudron J in Hudson v Lee (1993) 115 ALR 343 where Her Honour held that section 362 of the Act was an ldquoexhaustive statementrdquo of the circumstances in which an election might be declared invalid or void in answer to a petition filed under Division 1 of Part XXII of the Act

446 In response Counsel for the petitioner Mr Sue and the Solicitor-General for the Commonwealth both submitted that the Court should not adopt such an unduly narrow reading of Part XXII of the Electoral Act The Solicitor-General submitted that the view expressed by Gaudron J in Hudson v Lee is limited to questions of misconduct and is authority only for the proposition that misconduct is not actionable unless it finds a source in section 362 of the Act The AEC made no submissions in relation to this first question in the Case Stated

447 The question whether the Court had jurisdiction to determine whether the first respondent Ms Hill was ldquoincapable of being chosenrdquo as a Senator by reason of section 44(i) of the Constitution inevitably drew the Court into the question whether it was sitting as the High Court of Australia and thus having the jurisdiction conferred on the High Court by the Constitution or whether it was sitting as a separate statutory Court namely the Court of Disputed Returns and thus having the jurisdiction conferred on it under Part XXII of the Electoral Act

448 The second question in the Case Stated ldquoWas the first respondent at the date of her nomination a subject or citizen of a foreign powerrdquo was dealt with in two parts whether the United Kingdom is a ldquoforeign powerrdquo for the purposes of section 44(i) of the Constitution and whether Ms Hill was a ldquosubject or citizenrdquo of the United Kingdom irrespective of whether the United Kingdom is a foreign power The AEC made no submissions in relation to this second question in the Case Stated

449 There was little disagreement between the parties concerned that when section 44(i) was enacted the framers of the Constitution did not envisage the phrase ldquoforeign powerrdquo to include the United Kingdom Indeed until 1948 and the passing of the Nationality and Citizenship Act 1948 citizenship of the United Kingdom was the norm for the majority of Australians

4410 Counsel for the first respondent Ms Hill submitted that as at 1900 the phrase ldquoforeign powerrdquo did not and was not intended to include the United Kingdom and that none of the events circumstances or legislative enactments since 1900 have converted the special and unique relationship between the Commonwealth of Australia and the United Kingdom into a relationship now between the Commonwealth and a ldquoforeign powerrdquo It was submitted that the relationship was like that between a parent and a child which forever binds the child to the parent

4411 In relation to whether Ms Hill was a ldquosubject or a citizenrdquo of the United Kingdom Counsel for Ms Hill endeavoured to distinguish the Courtrsquos decision in Sykes v Cleary (1992) 176 CLR 77 on the grounds that Ms Hill was at the time of her nomination an Australian citizen This it was submitted was enough to avoid the operation of section 44(i)

4412 In response Counsel for the petitioner Mr Sue and the Solicitor-General for the Commonwealth both submitted that the United Kingdom is a ldquoforeign powerrdquo for the purposes of section 44(i) of the Constitution Counsel for the petitioner further submitted that even if the United Kingdom was not a foreign power in 1900 and even if difficulties arise in identifying the exact point in time when it became a foreign power it can nevertheless be said with confidence that the emergence of Australia as an independent nation and the occurrence of various relevant events particularly the passage of the Australia Act 1986 mean that at least when Ms Hill was nominated for election the United Kingdom had truly become a ldquoforeign powerrdquo

4413 Finally Counsel for the petitioner Mr Sue and the Solicitor-General for the Commonwealth both submitted that at the date of her nomination Ms Hill held British citizenship and had not taken all reasonable (or any) steps to divest herself of that citizenship In particular she had not made the appropriate declaration of renunciation of that citizenship as per Sykes v Cleary That is if the United Kingdom is a ldquoforeign powerrdquo within the meaning of section 44(i) then Ms Hill was incapable of being chosen as a Senator

4414 In relation to the third question in the Case Stated ldquoWas the first respondent duly elected at the electionrdquo there was common ground between the parties that if the Court found that at the date of her nomination Ms Hill was incapable of being chosen as a Senator by reason of her being a subject or citizen of a foreign power then it must follow that the first respondent was not duly elected at the election

4415 In relation to the fourth question in the Case Stated ldquoIf the first respondent was not duly elected was the election absolutely voidrdquo the parties in Sue v Hill agreed with the submission by the Solicitor-General for the Commonwealth that this question should be answered in the negative that is the election should not be declared absolutely void and a recount would be the appropriate remedy However the second petitioner Mr Sharples submitted that the question should be answered in the positive and a ldquowhole new electionrdquo should be conducted

4416 In relation to the fifth question in the Case Stated ldquoIf the election should not be declared void absolutely should the second respondent conduct a recount of the ballot papers cast for the purpose of determining the candidate entitled to be declared electedrdquo Counsel for the AEC submitted that a recount of the ballot papers for the position of Ms Hill would be the most appropriate remedy per In re Wood (1988) 167 CLR 145 Counsel for the petitioner Mr Sue Counsel for the first respondent Ms Hill and the Solicitor-General for the Commonwealth agreed with the submissions of the AEC

4417 In response to questions from the Bench Counsel for the AEC further submitted that it was highly probable that a member of the same political party as Ms Hill would be elected in her place on a recount of the ballot papers That is a recount would probably elect Mr Len Harris of One Nation in place of Ms Hill of One Nation because around 99 of electors who voted 1 for Ms Hill voted 2 for Mr Harris the second candidate on the One Nation group voting ticket Nevertheless until the recount was actually conducted this remained an hypothetical proposition

4418 In opposition to the submissions of the AEC the second petitioner Mr Sharples submitted that the Court could not be absolutely confident that the votersrsquo original intentions would be reflected by a recount given the distribution of first preferences for Ms Hill above and below the line on the ballot papers He referred also to the fact that Ms Hill was elected third in a field of six whilst in the precedent case In re Wood Mr Wood was elected last in a field of twelve He submitted that a fresh election was therefore the most appropriate remedy The Court then ordered Counsel for the AEC to provide further written submissions on the different consequences that might flow from the different order in which Mr Wood was elected in 1988 and Ms Hill in 1998

4419 The further written submissions were filed by the AEC on 18 May 1999 and showed that in its amicus role the AEC had given early consideration as to whether the election of other candidates would be disturbed by a recount if Ms Hill were to be disqualified and had concluded that this was so unlikely that their involvement in the proceedings need not be suggested to the Court The AEC further submitted that the different order of election in the Wood and the Hill cases would not change the fact that Mr Harris of One Nation would most probably be elected on a recount to replace Ms Hill In the event Mr Sharples chose to file further written submissions in response to the further written submissions of the AEC in which he endeavoured to distinguish In re Wood and further argued the case for a fresh election

4420 The sixth and final question in the Case Stated was ldquoSave for those otherwise dealt with by order who should pay the costs of the Stated Case and of the hearing of the Stated Case before the Full High Courtrdquo Counsel for the petitioner Mr Sue submitted that if the petition was successful the first respondent Ms Hill should pay his costs Counsel for the first respondent Ms Hill submitted that the Commonwealth should pay her costs because the questions raised were ldquoof great contemporary importancerdquo Alternatively it was submitted that if the petition failed then her costs should be paid by the petitioner The AEC submitted that no costs order should be made against the AEC and sought no costs order against the other parties

4421 The Solicitor-General for the Commonwealth submitted that no costs order should be made against the Commonwealth (under section 360(4) of the Electoral Act) and sought no costs order against the other parties The submission that the Commonwealth should not pay the costs of the other parties was not well received by the Bench Justice Callinan called it ldquoan extraordinary submissionrdquo

4422 Justice Gaudron cavilled at the submission by the Solicitor-General on the grounds that ldquoone half of the argument at least is concerned with matters relating to the effect of the Act ndash perhaps more than one halfrdquo and went on to say that ldquodeficienciesrdquo in the Act ldquohave been drawn to the attention of the Commonwealth in litigation for many yearsrdquo yet ldquopeople have been content more or less to leave [the Act] as it is with little thought as to how it operatesrdquo (transcript 12 May 1999 pp 65-66)

4423 The Decision in the Petitions On 23 June 1999 the Full Bench of the High Court handed down its judgment in Sue v Hill (1999) 73 ALJR 1016 and Sharples v Hill (B49 of 1998 High Court 23 June 1999 unreported) (Attachment 2) The majority of the Court (Gleeson CJ Gaudron Gummow and Hayne JJ) answered the questions in the Case Stated as follows

(a) Does s 354 of the Act validly confer upon the Court of Disputed Returns jurisdiction to determine the issues raised in the petition

Answer Yes

(b) Was the first respondent at the date of her nomination a subject or citizen of a foreign power within the meaning of s 44(i) of the Constitution

Answer Yes

(c) Was the first respondent duly elected at the election

Answer No

(d) If no to (c) was the election void absolutely

Answer No

(e) If no to (d) should the second respondent conduct a recount of the ballot papers cast for the election for the purposes of determining the candidate entitled to be elected to the place for which the first respondent was returned

Answer Inappropriate to answer

(f) Save for the otherwise dealt with by order who should pay the costs of the Stated Case and of the hearing of the Stated Case before the Full High Court

Answer The Commonwealth should pay the costs of the petitioner and the first respondent The second respondent should bear its own costs

4424 In delivering the judgment of the Court in the Sue v Hill and the Sharples v Hill petitions Chief Justice Gleeson made the following summary

In these two cases which were commenced in the Court of Disputed Returns the election of Mrs Hill as a Senator for the State of Queensland was challenged on the ground that at the date of her nomination she was incapable of being chosen as a Senator The specific ground of disqualification alleged was related to section 44(i) of the Constitution and was that at the date of nomination Mrs Hill was a subject or citizen of a foreign power namely the United Kingdom

The members of the Court who constituted the Court of Disputed Returns in each case raised certain questions for the decision of the full High Court

The first question was whether the Court of Disputed Returns has the jurisdiction invoked by the respective petitioners that is to say jurisdiction under Division 1 of Part XXII of the Commonwealth Electoral Act 1918 to consider a challenge to an election based solely on the ground of disqualification under section 44 of the Constitution Four members of the Court (Gleeson CJ Gaudron Gummow and Hayne JJ) have answered that question in the affirmative holding that there is jurisdiction Three members of the Court (McHugh Kirby Callinan JJ) have answered the question in the negative holding that jurisdiction does not exist

The three members of the Court who held that there was no jurisdiction of the kind invoked did not for that reason go on to answer the remaining questions

The four members of the Court who held that there is jurisdiction dealt with the remaining questions as follows

(a) The United Kingdom is a foreign power within the meaning of section 44 of the Constitution (b) At the time of her nomination Mrs Hill was a subject or citizen of a foreign power and was therefore incapable of being chosen as a Senator (c) Mrs Hill was therefore not duly elected (d) The consequence is not that the entire election of Senators for Queensland was void absolutely

Those four members of the Court were of the opinion that there should be a recount

As to the manner and extent of such recount these are matters upon which persons who have not been represented in the proceedings might wish to have the opportunity of being heard Accordingly each case has been remitted to the Court of Disputed Returns In the case of Sue v Hill the Court will sit at 930 am tomorrow for the purpose of considering the future course of the proceedings and if necessary giving directions

It was ordered that the Commonwealth should pay the costs of the petitioners and Mrs Hill

4425 The conclusion by the Court that other persons involved in the Queensland Senate election should be heard on the manner and extent of a recount was in response to the submissions made by Mr Sharples that the result of a recount as hypothesised by the AEC (the election of Mr Len Harris of One Nation to replace Ms Hill) might not transpire and the election or nonshyelection of the other candidates might be disturbed At paragraph 179 of the decision Justice Gaudron expanded on the doubts about the outcome of a recount that were raised in the Court by Mr Sharplesrsquo submissions

Although nothing was put to suggest that the true intention of the voters cannot be ascertained by a recount it emerged at the hearing that there was a real question as to the manner in which the recount should be conducted As formulated question (e) posits that a recount should be conducted only for the third Senate position However it is possible that a recount of all votes might have consequences for the fourth fifth and sixth Senators Those persons were not represented at the hearing It may be that that was because having regard to the terms of question (e) they were of the view that their positions would not be affected by a recount In the circumstances the appropriate course is to answer question (e) in each of the cases stated ldquoInappropriate to answerrdquo leaving the issue to be determined by a single Justice after hearing such submission if any as the persons returned as the fourth fifth and sixth Senators wish to make

45 Later Proceedings in the Petitions

451 On 24 June 1999 Chief Justice Gleeson sat as the Court of Disputed Returns to further progress the issues about the manner and extent of a recount The petitioner Mr Sue was represented by Ms Collins the first respondent Ms Hill was represented by Mr Templeton the second respondent the AEC was represented by Mr Swan of AGS and Mr Burmester QC appeared for the Attorney-General for the Commonwealth (Intervening) In addition two other persons involved in the election appeared Senator-elect Mason was represented by Mr Shannon and Senator OrsquoChee was represented by Mr Saunders

452 His Honour indicated from the outset that the purpose of the hearing was to address the concerns detailed in paragraph 179 of Justice Gaudronrsquos judgment namely that everyone who had a possible interest in a recount be given an opportunity to be heard His Honour identified three categories of such persons First Mr Len Harris the second candidate on the One Nation group voting ticket second the candidates elected in the fourth fifth and sixth positions for the Queensland Senate and third any non-elected candidate who might possibly replace any of the candidates elected to the fourth fifth and sixth positions Counsel for the AEC identified Ms Jann Piasecki Mr Drew Hutton Senator OrsquoChee and Mr John Bradford as persons who might have an interest within the categories set by the Chief Justice

453 His Honour then directed that a letter be sent immediately by the AEC to Senator-elect Ludwig Senator Woodley Mr John Bradford Mr Len Harris Ms Jann Piasecki and Mr Drew Hutton drawing their attention to the petition and the decision of the Court advising the intention to conduct a recount and that they had the opportunity to address the Court on the manner and extent of that recount

454 The Court was advised by Counsel for the AEC that if a recount was ordered by the Court it would be done by computer as permitted by section 273A of the Electoral Act and could be done the following day in approximately 45 minutes subject to the availability of scrutineers for the interested parties

455 Towards the end of these proceedings Counsel for the first respondent Ms Hill indicated that on the finding by the Full Bench that Ms Hill was not duly elected his client no longer had any interest in the proceedings He was therefore granted leave to be excused from further appearance and was not present for the costs orders at the end of these proceedings

456 On 29 June 1999 proceedings resumed before Chief Justice Gleeson by reference to a Notice of Motion of 28 June 1999 filed by the AEC setting out proposed orders and attaching a schedule for the conduct of a recount as follows

(1) A vote indicated on a ballot paper opposite the name of Heather Hill be counted to the candidate next in the order of the voterrsquos preference and the numbers indicating subsequent preferences be treated as altered accordingly (2) The further counting and recounting be conducted subject to direction (1) as nearly as practicable in accordance with the relevant provisions of section 273A of the Commonwealth Electoral Act 1918 (ldquothe Actrdquo) as if there were 6 vacancies to be filled (3) The further counting and recounting identify which candidate is entitled to be elected to the third place left unfilled by the ineligibility of Heather Hill (4) The further counting and recounting identify which (if any) candidate or candidates other than Mr Ludwig Mr Mason or Senator Woodley is or are entitled to be elected in the place of Mr Ludwig Mr Mason or Senator Woodley to any of the fourth fifth or sixth places to be filled (5) Notwithstanding direction (1) any ballot paper ruled to be informal during the 1998 scrutiny be treated as informal in the further counting and recounting (6) Notwithstanding direction (1) any ballot paper ruled to be formal during the 1998 scrutiny be treated as formal in the further counting and recounting except where a ballot paper is marked with a first preference for Heather Hill followed by the marking of a second preference for each of 2 or more other candidates (7) Notwithstanding direction (1) any ballot paper showing the same preference for Heather Hill and one or more other continuing candidates be set aside as exhausted in accordance with subsection 273(26) at the point in the scrutiny at which it would have been set aside had Heather Hill been a candidate eligible for election (8) Ballot papers marked with group voting ticket votes not be counted again but that the group voting tickets figures ascertained in the 1998 scrutiny be adjusted in accordance with direction (1) for the purposes of the further counting and recounting

457 The petitioner Mr Sue was represented by Ms Tait the second respondent the AEC was represented by Mr Swan of AGS and the Attorney-General for the Commonwealth (Intervening) was represented by Mr Burmester QC A number of other parties sought leave to intervene Mr Harris the second candidate on the One Nation group voting ticket was represented by Mr Gageler Senator Woodley was represented by Mr Davey Senator-elect Mason was represented by Mr Wood and Senator OrsquoChee was represented by Mr Applegarth An affidavit of 29 June of Mr McCarthy for the AEC testified to the notification of these parties by the AEC as ordered at the previous proceedings

458 An affidavit of 28 June of Mr Spelman of the AEC which was read to the Court by Mr Swan for the AEC advised the appropriateness of a full recount computerised in accordance with section 273A of the Electoral Act and in accordance with the directions in the schedule attached to the proposed orders and the inappropriateness of a recount that did not take into account all formal votes cast in the election

459 A full recount as proposed by the AEC was supported by Senator Woodley Senator-elect Mason Senator OrsquoChee Mr Harris and the Attorney-General on the basis that the recount would resolve whether any questions arose about disturbing the election or non-election of other candidates and that the conduct of the recount would not pre-empt any submissions they might make regarding the form of any resultant orders His Honour then ordered the AEC to conduct a full recount according to the schedule and report back to the Court with the results Costs in these proceedings were reserved

4510 On 2 July 1999 proceedings resumed before Chief Justice Gleeson with the same appearances as for 29 July with the exception that (now) Senator Mason and (now) Mr OrsquoChee were represented by Mr Wood An affidavit of 30 June of Mr Spelman of the AEC which was read to the Court by Mr Swan for the AEC advised the outcome of the full recount which was that Mr Harris achieved a quota in place of Ms Hill and the other candidates elected were unchanged from those elected at the original election

4511 With respect to costs in these later proceedings Mr Swan for the AEC and Mr Burmester for the Attorney-General submitted that each party should bear their own costs The other parties present (with the first respondent Ms Hill now absent) submitted that the Commonwealth should pay their costs under section 360(4) of the Electoral Act

4512 His Honour formally granted leave to intervene to Mr OrsquoChee Senator Mason Senator Woodley and Mr Harris and then ordered

1 That Heather Hill was not duly elected at the election held on 3 October 1998 2 That Mr Len Harris be declared duly elected as a Senator for the State of Queensland in the place for which Heather Hill was returned 3 That the second respondent and the Attorney-General for the Commonwealth each bear their own costs 4 That the Commonwealth pay the costs of the petitioner Senator Woodley Senator Mason Mr OrsquoChee and Mr Harris and their costs on previous occasions which have been reserved 5 Certify for counsel

4513 Lastly His Honour noted that Mr Sharples was not present and directed that his petition be re-listed before Justice Callinan to make such orders as he thought appropriate having regard to proceedings in the Sue petition

4514 On 29 July 1999 proceedings in the Sharples petition resumed before Justice Callinan The petitioner Mr Sharples represented himself the first respondent Ms Hill did not appear the second respondent the AEC was represented by Mr Swan of AGS the Attorney-General (Intervening) did not appear and on the question of costs the Commonwealth was represented by Mr Belcher of AGS (instructed by the AEC)

4515 His Honour ordered that

1 The petition be dismissed 2 The second respondent bear its own costs 3 The Commonwealth pay the costs of the petitioner of todayrsquos proceedings and of previous occasions on which costs were reserved

4516 The outcome on costs for both petitions was that under section 360(4) of the Electoral Act the Commonwealth was ordered to pay the costs on a partyparty basis of all the parties (except the Attorney-General and the AEC) in the proceedings extending over a period of some six months and involving numerous counsel and senior counsel Whilst the public interest in these petitions was properly served in all proceedings the award of costs against the Commonwealth will amount to a substantial cost to the public purse

4517 The AEC has now been advised by the Constitutional Unit of the Australian Government Solicitor and the Department of Finance and Administration that the costs awarded against the Commonwealth are the responsibility of the AEC There is no suggestion that the AEC was at fault in the conduct of the election or proceedings on the petitions

5 Implications of the Sue and Sharples Decisions

51 Jurisdiction of the Court of Disputed Returns

511 The majority judgment of the High Court (Gleeson CJ Gaudron Gummow and Hayne JJ) in the SueSharples petitions held that section 354 of the Electoral Act validly conferred jurisdiction upon the Court of Disputed Returns to determine the constitutional question raised in the petitions namely whether Ms Heather Hill was disqualified from being elected under section 44(i) of the Constitution

512 That is it has been concluded that the Court of Disputed Returns has jurisdiction to hear petitions raising questions of constitutional disqualifications filed under Division 1 of Part XXII of the Electoral Act The corollary is that the jurisdiction of the Court of Disputed Returns to hear questions of constitutional qualifications is not limited to matters referred to the Court by the Parliament under Division 2 of Part XXII the Electoral Act

513 The jurisdictional decision in the SueSharples petitions is in accordance with the conduct of proceedings in 1992 in Sykes v Cleary (1992) 176 CLR 77 which was initiated by way of a petition filed by Mr Ian Sykes under Division 1 of Part XXII of the Electoral Act The Sykes v Cleary decision resulted in the disqualification of Mr Phil Cleary under section 44(iv) of the Constitution for holding an office of profit under the Crown at the time of his nomination and a finding that other candidates in the by-election for the Division of Wills Mr Kardamitisis (ALP) and Mr Delacretaz (Liberal Party) were disqualified under section 44(i) of the Constitution for holding dual citizenship with Greece and Switzerland respectively

514 The jurisdictional decision in the SueSharples petitions is also in accordance with the conduct of proceedings in 1996 in Free v Kelly (1996) 70 ALJR 809 which was initiated by way of a petition filed by Mr Ross Free under Division 1 of Part XXII of the Electoral Act The Free v Kelly decision resulted in the disqualification of Ms Jackie Kelly under section 44(iv) of the Constitution for holding an office of profit under the Crown at the time of her nomination

515 The history of the separation of powers between the Parliament and the Judiciary in relation to such matters begins with the commencement of the Commonwealth in 1901 when section 47 of the Constitution prevailed

Until the Parliament otherwise provides any question respecting the qualifications of a senator or of a member of the House of Representatives or respecting a vacancy in either House of the Parliament and any question of a disputed election to either House shall be determined by the House in which the question arises

516 The Parliament then otherwise provided in sections 192-206 of the Commonwealth Electoral Act 1902 to the effect that the validity of any disputed election or return was to be decided by the High Court sitting as the Court of Disputed Returns

517 Further in section 6 of the Commonwealth Electoral Act 1907 the Parliament provided that any question on the qualifications of Members of Parliament or on a vacancy in the Parliament could be referred to the Court by resolution of the House of the Parliament in which the question arose In 1918 these two Acts were consolidated into the Commonwealth Electoral Act 1918 and now appear as Divisions 1 and 2 of Part XXII of the Electoral Act

518 The most recent example of the referral by the Parliament of a question concerning the qualifications of a Member of Parliament is the case of Senator Robert Wood in 1988 when the Senate referred the question of his qualifications by way of Division 2 of Part XXII of the Electoral Act to the Court of Disputed Returns Senator Wood was subsequently found to be disqualified by section 163 of the Electoral Act because he was not an Australian citizen

519 During the course of the 1999 proceedings in the SueSharples petitions the matter of Mr Warren Entsch MP and his alleged disqualification under section 44(v) of the Constitution was raised in the Parliament On 10 June 1999 the Leader of the Opposition moved in the House of Representatives

That the following question be referred to the Court of Disputed Returns for determination pursuant to section 376 of the Commonwealth Electoral Act 1918 Whether the place of the honourable Member for Leichhardt (Mr Entsch) has become vacant pursuant to the provisions of section 44(v) of the Constitution

5110 In response the Attorney-General moved in the House of Representatives that the motion be amended to read as follows

That the House determines that the member for Leichhardt does not have any direct or indirect pecuniary interest with the Public Service of the Commonwealth within the meaning of section 44(v) of the Constitution by reason of any contract entered into by Cape York Concrete Pty Ltd since 3 October 1998 and the member for Leichhardt is therefore not incapable of sitting as a member of this House

5111 The amendment moved by the Attorney-General was resolved in the affirmative That is in the Entsch matter the House of Representatives resolved not to refer the question of the constitutional qualifications of the Member for Leichhardt to the Court of Disputed Returns for consideration but instead resolved itself that he was not so disqualified This action asserted the right of the Parliament to make determinations on the constitutional qualifications of its own members without the involvement of the Judiciary

5112 It could be suggested that such determinations about constitutional qualifications made on the numbers in the relevant House of the Parliament might not be entirely disinterested at a political level And it might appear that anyone other than a Member of Parliament who wishes to challenge the constitutional qualifications of a sitting Member is foreclosed from doing so by the time limitation in section 355(e) of the Electoral Act which provides that a petition must be filed with the High Court within 40 days of the return of the writ for the relevant election

5113 However in those circumstances where the elected Parliament has already formed and the petition filing period has passed the Common Informers (Parliamentary Disqualifications) Act 1975 enables any person to sue the High Court for the payment of $200 per day for the period during which a Member of Parliament sits while being disqualified after being served with the originating process and the sum of $200 only in respect of a past breach The Act restricts such suits to a period no earlier than 12 months before the day on which the suit is instituted In relation to the Entsch matter this would mean that for any common informers action to be instituted Mr Entsch must have been disqualified as alleged within the 12 months preceding the date on which the suit was filed

5114 The most significant issues arising from the related matters discussed above would appear to be twofold

(a) whether the Electoral Act should continue to provide that the constitutional qualifications of Members of Parliament can be disputed by way of petition from any elector or candidate to the Court of Disputed Returns within 40 day days of the return of the writ for the election

(b) whether in the absence of either a referral to the Court of Disputed Returns by the House affected or a petition to the Court within 40 days of the return of the writ for the election or a common informerrsquos suit the Parliament should retain its authority to decide on the constitutional qualifications of its own members

5115 These issues arise out of the dispute resolution scheme provided for in the Electoral Act by the Parliament in the early part of this century and have not before been given direct consideration by the JSCEM since the major amendments to the Electoral Act in 1983 However given that these questions also go to the separation of powers between the Parliament and Judiciary and may therefore require considered submissions from all interested parties the AEC makes the following recommendation

Recommendation 1 That the JSCEM seek a reference to inquire into the powers and functions of the Australian Electoral Commission as expressed in Part II of the Electoral Act and Part I of the Referendum Act and the powers and functions of the Court of Disputed Returns as expressed in Part XXII of the Electoral Act and in Part VIII of the Referendum Act

5116 The recommendation includes reference to the powers and functions of the AEC in the context of the issues raised in part 53 below

52 Constitutional Disqualifications

521 The decision of the High Court in the SueSharples petitions was that any candidate who is a subject or citizen of a foreign power such as the United Kingdom is disqualified at the time of nomination from election to the Parliament That is Ms Heather Hill was disqualified from being elected under section 44(i) of the Constitution

522 This decision was made by the majority members of the Court (Gleeson CJ Gaudron Gummow and Hayne JJ) after they had decided that the Court of Disputed Returns had jurisdiction to hear the petition The other members of the Court (McHugh Kirby and Callinan JJ) who decided that the Court of Disputed Returns had no jurisdiction to hear the petition were not required to form a view on the constitutional qualifications question

523 This decision of the High Court on the interpretation of section 44(i) of the Constitution represents a highly significant statement about the constitutional relationship between the United Kingdom and Australia and in particular makes it very clear that persons holding dual citizenship with the United Kingdom are as equally subject to the constitutional disqualification as persons holding dual citizenship with any other foreign power

524 This may not have been clearly apparent from Sykes v Cleary in 1992 for example where after finding that Mr Phil Cleary was disqualified under section 44(iv) of the Constitution the Court went on to apply section 44(i) of the Constitution to two other candidates Mr Kardamitsis (ALP) and Mr Delacretaz (Liberal Party) who held dual citizenship with Greece and Switzerland respectively and found that they would have also been disqualified Although the Court indicated that all ldquoreasonable stepsrdquo should be taken by candidates to divest themselves of dual citizenship a doubt may have remained after this case as to whether this rule applied equally to British subjects The judgment in the SueSharples petitions should now remove any such doubts

525 However in its publications provided to intending candidates since the 1992 Sykes v Cleary decision the AEC did not find it necessary to make any such distinctions between the United Kingdom and other foreign powers in warning intending candidates to take reasonable steps to divest themselves of dual citizenship before nomination

526 For example on 17 July 1999 some three months before the 1998 federal election the AEC published Electoral Backgrounder No 4 entitled ldquoCandidate Disqualifications Section 44 of the Constitutionrdquo which provided a detailed discussion of the constitutional disqualifications for candidates at federal elections The AEC included information on how British subjects could divest themselves of dual citizenship in paragraph 27 This Backgrounder was made available to the public in hard copy from all AEC offices on the AEC Internet site (wwwaecgovau) and was provided to all candidates as part of the AEC ldquoCandidates Information Kitrdquo

422 The petitioner Mr Sharples asked the Court to void the election of Ms Hill to order the Queensland Governor to issue a writ for an election to fill the Senate position and to order the Commonwealth to pay his costs Mr Sharples was known to be a disaffected One Nation Party member who was apparently seeking a fresh Senate election or a ldquoby-electionrdquo so as to reduce the possibility of another candidate from the One Nation Senate group replacing Ms Hill which would be the likely outcome of a recount

43 Preliminary Proceedings in the Petitions

431 On 2 and 25 February 1999 solicitors for the respondent Ms Hill Watkins Stokes Templeton filed with the Court a summons and an amended summons seeking the dismissal or striking out of the petition on the following grounds

(a) that the petition did not comply with section 355(a) and (aa) of the Electoral Act because it did not set out the facts relied on in sufficient particularity (b) that the petitioner had failed to publish the petition in the Commonwealth Gazette as required by Order 68 Rule 3 of the High Court Rules (later done and acknowledged) and (c) that the Court of Disputed Returns is not empowered to declare the respondent not capable of being elected or not duly elected

432 On 10 March 199 solicitors for the respondent Ms Hill filed a further amended summons again seeking dismissal of the petition on the above grounds but also seeking the referral to the Full Bench of the High Court a question on the jurisdiction of the Court

hellip in the event that the respondent does not establish any of the grounds in (a) (b) and (c) above the respondent seeks an order that there be referred to the Full Court the following constitutional issue

That the purported vesting in the High Court of Australia by s 354 of the Commonwealth Electoral Act 1918 of the power to try petitions and determine the validity of any election or return is contrary to the separation of powers between the Executive Legislative and Judiciary contained in the Constitution and is therefore invalid

433 At a directions hearing on 15 March 1999 before Chief Justice Gleeson of the High Court the petitioner Mr Sue was represented by Mr Stephen Finch SC the respondent Ms Hill was represented by Mr David Rofe QC The AEC represented by Mr Geoffrey McCarthy of the Australian Government Solicitor sought and was granted leave to enter an appearance as a party to the petition The AEC thereby became the second respondent to the Sue petition

434 Where the AEC is not expressly named as respondent in an election petition the AEC normally seeks leave to join as a party an entitlement provided for in section 359 of the Electoral Act in order to make submissions on the facts of the election under dispute and submissions on the appropriate relief or remedy should the petition succeed The AEC does not make submissions on constitutional issues raised in petitions as this is more appropriately for the Attorney-General for the Commonwealth who is entitled to intervene under section 78A of the Judiciary Act 1903 where constitutional issues are agitated in the High Court

435 In its amicus role in election petitions the AEC does not seek costs against other parties and does not expect costs to be awarded against it as detailed in the decision of Brennan CJ in Free v Kelly (1996) 70 ALJR 809 at 812

The Commission may be represented and heard under s 359 in at least four categories of cases cases where the Commission seeks to defend the conduct of an election or the conduct of an officer of the Commission in relation to an election cases in which the Commission intervenes for the purpose of advancing a proposition for which it seeks curial confirmation to assist it in the discharge of its statutory functions cases where the Commission adopts a partisan stance supporting one party or another and cases where the Commission merely makes appropriate reference to the Act and to authority in order to assist the Court to determine a petition

It may be appropriate to make an order for or against the Commission in the first three categories of case but in the fourth category the Commission is engaged in the proper performance of a statutory function in the public interest The appearance of the Commission in such a case ought not to enlarge the risk of costs to the other parties to the proceedings Being incidental to the proper performance of its statutory functions the cost of being represented and heard ought properly to be borne as a cost of the Commissionrsquos administration This is such a case Expressing as I do appreciation of the considerable assistance that the Commission offered ndash not least in the preparation of an agreed statement of facts ndash it is appropriate to make no order with respect to the costs of the Commission

436 At the first directions hearing in the Sue petition on 15 March 1999 Chief Justice Gleeson indicated his intention to proceed only on the single issue raised by the first respondent Ms Hill in her various summonses of whether the petition complied with sections 355(a) and (aa) of the Electoral Act in providing sufficient facts and particulars to ground the petition His Honour was critical of the petitionerrsquos general claim of a breach of section 44(i) of the Constitution which simply repeated the text of the provision without making any effort to identify what aspects were relevant or at issue and described the petition as ldquoan uncritical spray levelled at the respondent by taking the language of the statute and not bothering to work out what your case really wasrdquo (transcript 15 March 1999 page 12)

437 The question then arose as to whether the petition could be amended to delete aspects of the petition which were not properly pleaded or which the petitioner did not intend to pursue Section 44(i) of the Constitution provides three categories of disqualification (Sykes v Cleary (1992) 176 CLR 77 at 109shy111) and the terms of the petition suggested that Ms Hill was in breach of all three categories even though the only fact presented in the petition that Ms Hill was at the relevant time a citizen of Great Britain appeared to be a breach only of the second category in section 44(i) His Honour heard submissions from all parties on whether the deletion of part of a petition amounted to amending a petition which precedent case law suggested was not permissible (Nile v Wood (1988) 167 CLR 133 at 137)

438 On 19 March 1999 Chief Justice Gleeson delivered his decision on whether the petition was in compliance with section 355 of the Electoral Act and if not whether it should be dismissed or struck out (Attachment 1) His Honour concluded that the petition would have been dismissed but for the exercise of the discretionary power in section 358(2) of the Electoral Act and ordered the petitioner Mr Sue to pay the costs of the respondentrsquos (Ms Hillrsquos) costs of the application even though the respondentrsquos application for dismissal of the petition was itself dismissed The petition was allowed to proceed on the terms that the petitioner was prevented from placing any further reliance on any allegations that fell within either the first or the third categories of disqualification in section 44(i) of the Constitution

439 On the same day in further directions Chief Justice Gleeson proposed that the Sue and the Sharples petitions should be managed separately at this stage Mr Sharples who was not represented had filed his petition in Brisbane and his petition was assigned to Justice Callinan to progress the matter in Brisbane

4310 Chief Justice Gleeson then stated his intention consistent with the wishes of the parties to refer the substantive questions arising under of the Sue petition to the Full Court of the High Court pursuant to section 18 of the Judiciary Act 1903 Assuming the power to state a case His Honour directed the parties to prepare a draft case stated for the consideration of the Full Court There was general agreement between the parties that the case stated would contain a number of questions but should at least include a question as to whether the petitioner had taken all ldquoreasonable stepsrdquo to renounce her citizenship of Great Britain according to the test provided in Sykes v Cleary and a question as to whether Great Britain is a ldquoforeign powerrdquo

4311 It was indicated that it was likely that the matter would be listed before the Full Court on 11 and 12 May 1999 in Canberra The proceedings would involve consideration of a Stated Case in the context of an Agreed Statement of Facts There was general agreement between the parties that the facts would be relatively few and the parties did not anticipate any disagreement as to the facts

4312 His Honour noted tentative agreement between the parties that if the petition were successful a recount would be the appropriate remedy and that the person placed second on the One Nation Partyrsquos group voting ticket would in all probability be the person who should be declared duly elected pursuant to section 360(1)(iv) of the Electoral Act His Honour suggested that that person Mr Len Harris would have to have an interest in the proceedings and might wish to be heard The matter was adjourned with costs in these preliminary proceedings

4313 On 29 March 1999 directions resumed before Chief Justice Gleeson and the draft Case Stated in the Sue petition was settled between the parties On 30 March 1999 His Honour signed the Case Stated with the following questions being referred to the Full Bench of the High Court

(a) Does s 354 of the Act validly confer upon the Court of Disputed Returns jurisdiction to determine the issues raised in the petition (b) Was the first respondent at the date of her nomination a subject or citizen of a foreign power within the meaning of s 44(i) of the Constitution (c) Was the first respondent duly elected at the election (d) If no to (c) was the election void absolutely (e) If no to (d) should the second respondent conduct a recount of the ballot papers cast for the election for the purposes of determining the candidate entitled to be elected to the place for which the first respondent was returned (f) Save for the otherwise dealt with by order who should pay the costs of the Stated Case and of the hearing of the Stated Case before the Full High Court

4314 On 1 April 1999 a directions hearing on the Sharples petition was held by Justice Callinan in Brisbane with Mr Sharples representing himself and Mr Templeton representing the respondent Ms Hill The AEC represented by Mr Maurice Swan of the Australian Government Solicitor was granted leave to enter an appearance as a party to the petition and the AEC thereby became the second respondent to the Sharples petition Justice Callinan indicated that he was inclined to follow the same course as set by Chief Justice Gleeson in the Sue petition and asked for an Agreed Statement of Facts and a draft Case Stated from the parties The matter was adjourned to 22 April 1999

4315 In negotiations between the parties on the preparation of the draft Statement of Facts and Case Stated the petitioner Mr Sharples expressed his substantial disagreement with the Statement of Facts in the Case Stated already concluded in the Sue petition proceedings despite the respondents (Ms Hill and the AEC) expressing the view that the Statement of Facts in the Case Stated in the Sharples petition proceedings should be the same (with the omission only of a paragraph that was peculiar to the Sue Case Stated)

4316 On 22 April in directions before Justice Callinan His Honour ruled on the various points of disagreement in the draft Statement of Facts in the Case Stated between the petitioner Mr Sharples and the two respondents Ms Hill and the AEC This resulted in the addition of the numbers of first preference votes ldquoabove the linerdquo and ldquobelow the linerdquo received by Ms Hill which Mr Sharples submitted would be pertinent to his argument for a Senate ldquoby-electionrdquo or fresh election However His Honour declined to make any changes to the questions in the Case Stated that were agreed in the Sue petition proceedings

4317 At the conclusion of the directions hearing Justice Callinan directed the parties to join in the preparation of a document to reflect the various amendments as ordered to the draft Statement of Facts in the Case Stated in the Sharples proceedings and directed that the amended document be submitted to him by 27 April for certification and referral to the Full Bench Costs in these preliminary proceedings were reserved

4318 Following these proceedings the petitioner Mr Sharples wrote various letters to the other parties expressing his dissatisfaction with the proceedings and filed an affidavit with the Court (which was not served on the other parties) complaining about the conduct of the other parties in negotiations In the event Justice Callinan certified the Case Stated and Statement of Facts in the Sharples petition proceedings and the matter was listed for hearing concurrently or consecutively with the Sue petition proceedings on 11-12 May

44 Substantive Proceedings in the Petitions

441 The hearing by the Full Bench of the High Court of the Case Stated in the Sue petition and the Case Stated in the Sharples petition took place on 11-12 May 1999 in Canberra and because of the number and length of submissions was extended on the second day for another day into 13 May

442 The first petitioner Mr Sue was represented by Mr Stephen Finch SC with Ms Elizabeth Collins The second petitioner Mr Sharples represented himself The first respondent to each petition Ms Heather Hill was represented by Mr Robert Ellicott QC and Mr David Rofe QC with Mr Anthony Tudehope The second respondent to each petition the AEC was represented by Mr Maurice Swan a barrister from the Australian Government Solicitor with considerable experience in disputed proportional representation elections The Attorney-General for the Commonwealth (Intervening) was represented by the Solicitor-General Mr David Bennett QC with Mr Nye Perram and Mr Christopher Ward

443 The first day of the hearing was occupied with the first question in the Case Stated ldquoDoes section 354 of the Act validly confer upon the Court of Disputed Returns jurisdiction to determine the issues raised in the petitionrdquo Counsel for the first respondent Ms Hill submitted that the purported conferral of power upon the Court under section 354 of the Electoral Act was invalid because it contravened the doctrine of separation of powers That is the determination of disputed elections and returns is ancillary to the legislative function of the Parliament and is not a judicial function

444 It was also submitted by Counsel for Ms Hill that even if the Court had jurisdiction to try the petition its powers did not extend to ruling upon whether the first respondent was incapable of being chosen by reason of section 44(i) of the Constitution That is when hearing a petition filed under Division 1 of Part XXII of the Electoral Act the Court is limited to consideration of alleged illegal practices per section 362 of the Act and Division 1 does not confer power on the Court to hear claims in a petition of constitutional disqualification

445 It was further submitted by Counsel for Ms Hill that the Courtrsquos power to consider whether a person was qualified to be a Member of Parliament arises only in Division 2 of Part XXII of the Electoral Act by means of a question referred to the Court by resolution of the relevant House of the Parliament This is why additional powers are conferred on the Court pursuant to section 379 of the Act Counsel for the first respondent relied on the judgment of Gaudron J in Hudson v Lee (1993) 115 ALR 343 where Her Honour held that section 362 of the Act was an ldquoexhaustive statementrdquo of the circumstances in which an election might be declared invalid or void in answer to a petition filed under Division 1 of Part XXII of the Act

446 In response Counsel for the petitioner Mr Sue and the Solicitor-General for the Commonwealth both submitted that the Court should not adopt such an unduly narrow reading of Part XXII of the Electoral Act The Solicitor-General submitted that the view expressed by Gaudron J in Hudson v Lee is limited to questions of misconduct and is authority only for the proposition that misconduct is not actionable unless it finds a source in section 362 of the Act The AEC made no submissions in relation to this first question in the Case Stated

447 The question whether the Court had jurisdiction to determine whether the first respondent Ms Hill was ldquoincapable of being chosenrdquo as a Senator by reason of section 44(i) of the Constitution inevitably drew the Court into the question whether it was sitting as the High Court of Australia and thus having the jurisdiction conferred on the High Court by the Constitution or whether it was sitting as a separate statutory Court namely the Court of Disputed Returns and thus having the jurisdiction conferred on it under Part XXII of the Electoral Act

448 The second question in the Case Stated ldquoWas the first respondent at the date of her nomination a subject or citizen of a foreign powerrdquo was dealt with in two parts whether the United Kingdom is a ldquoforeign powerrdquo for the purposes of section 44(i) of the Constitution and whether Ms Hill was a ldquosubject or citizenrdquo of the United Kingdom irrespective of whether the United Kingdom is a foreign power The AEC made no submissions in relation to this second question in the Case Stated

449 There was little disagreement between the parties concerned that when section 44(i) was enacted the framers of the Constitution did not envisage the phrase ldquoforeign powerrdquo to include the United Kingdom Indeed until 1948 and the passing of the Nationality and Citizenship Act 1948 citizenship of the United Kingdom was the norm for the majority of Australians

4410 Counsel for the first respondent Ms Hill submitted that as at 1900 the phrase ldquoforeign powerrdquo did not and was not intended to include the United Kingdom and that none of the events circumstances or legislative enactments since 1900 have converted the special and unique relationship between the Commonwealth of Australia and the United Kingdom into a relationship now between the Commonwealth and a ldquoforeign powerrdquo It was submitted that the relationship was like that between a parent and a child which forever binds the child to the parent

4411 In relation to whether Ms Hill was a ldquosubject or a citizenrdquo of the United Kingdom Counsel for Ms Hill endeavoured to distinguish the Courtrsquos decision in Sykes v Cleary (1992) 176 CLR 77 on the grounds that Ms Hill was at the time of her nomination an Australian citizen This it was submitted was enough to avoid the operation of section 44(i)

4412 In response Counsel for the petitioner Mr Sue and the Solicitor-General for the Commonwealth both submitted that the United Kingdom is a ldquoforeign powerrdquo for the purposes of section 44(i) of the Constitution Counsel for the petitioner further submitted that even if the United Kingdom was not a foreign power in 1900 and even if difficulties arise in identifying the exact point in time when it became a foreign power it can nevertheless be said with confidence that the emergence of Australia as an independent nation and the occurrence of various relevant events particularly the passage of the Australia Act 1986 mean that at least when Ms Hill was nominated for election the United Kingdom had truly become a ldquoforeign powerrdquo

4413 Finally Counsel for the petitioner Mr Sue and the Solicitor-General for the Commonwealth both submitted that at the date of her nomination Ms Hill held British citizenship and had not taken all reasonable (or any) steps to divest herself of that citizenship In particular she had not made the appropriate declaration of renunciation of that citizenship as per Sykes v Cleary That is if the United Kingdom is a ldquoforeign powerrdquo within the meaning of section 44(i) then Ms Hill was incapable of being chosen as a Senator

4414 In relation to the third question in the Case Stated ldquoWas the first respondent duly elected at the electionrdquo there was common ground between the parties that if the Court found that at the date of her nomination Ms Hill was incapable of being chosen as a Senator by reason of her being a subject or citizen of a foreign power then it must follow that the first respondent was not duly elected at the election

4415 In relation to the fourth question in the Case Stated ldquoIf the first respondent was not duly elected was the election absolutely voidrdquo the parties in Sue v Hill agreed with the submission by the Solicitor-General for the Commonwealth that this question should be answered in the negative that is the election should not be declared absolutely void and a recount would be the appropriate remedy However the second petitioner Mr Sharples submitted that the question should be answered in the positive and a ldquowhole new electionrdquo should be conducted

4416 In relation to the fifth question in the Case Stated ldquoIf the election should not be declared void absolutely should the second respondent conduct a recount of the ballot papers cast for the purpose of determining the candidate entitled to be declared electedrdquo Counsel for the AEC submitted that a recount of the ballot papers for the position of Ms Hill would be the most appropriate remedy per In re Wood (1988) 167 CLR 145 Counsel for the petitioner Mr Sue Counsel for the first respondent Ms Hill and the Solicitor-General for the Commonwealth agreed with the submissions of the AEC

4417 In response to questions from the Bench Counsel for the AEC further submitted that it was highly probable that a member of the same political party as Ms Hill would be elected in her place on a recount of the ballot papers That is a recount would probably elect Mr Len Harris of One Nation in place of Ms Hill of One Nation because around 99 of electors who voted 1 for Ms Hill voted 2 for Mr Harris the second candidate on the One Nation group voting ticket Nevertheless until the recount was actually conducted this remained an hypothetical proposition

4418 In opposition to the submissions of the AEC the second petitioner Mr Sharples submitted that the Court could not be absolutely confident that the votersrsquo original intentions would be reflected by a recount given the distribution of first preferences for Ms Hill above and below the line on the ballot papers He referred also to the fact that Ms Hill was elected third in a field of six whilst in the precedent case In re Wood Mr Wood was elected last in a field of twelve He submitted that a fresh election was therefore the most appropriate remedy The Court then ordered Counsel for the AEC to provide further written submissions on the different consequences that might flow from the different order in which Mr Wood was elected in 1988 and Ms Hill in 1998

4419 The further written submissions were filed by the AEC on 18 May 1999 and showed that in its amicus role the AEC had given early consideration as to whether the election of other candidates would be disturbed by a recount if Ms Hill were to be disqualified and had concluded that this was so unlikely that their involvement in the proceedings need not be suggested to the Court The AEC further submitted that the different order of election in the Wood and the Hill cases would not change the fact that Mr Harris of One Nation would most probably be elected on a recount to replace Ms Hill In the event Mr Sharples chose to file further written submissions in response to the further written submissions of the AEC in which he endeavoured to distinguish In re Wood and further argued the case for a fresh election

4420 The sixth and final question in the Case Stated was ldquoSave for those otherwise dealt with by order who should pay the costs of the Stated Case and of the hearing of the Stated Case before the Full High Courtrdquo Counsel for the petitioner Mr Sue submitted that if the petition was successful the first respondent Ms Hill should pay his costs Counsel for the first respondent Ms Hill submitted that the Commonwealth should pay her costs because the questions raised were ldquoof great contemporary importancerdquo Alternatively it was submitted that if the petition failed then her costs should be paid by the petitioner The AEC submitted that no costs order should be made against the AEC and sought no costs order against the other parties

4421 The Solicitor-General for the Commonwealth submitted that no costs order should be made against the Commonwealth (under section 360(4) of the Electoral Act) and sought no costs order against the other parties The submission that the Commonwealth should not pay the costs of the other parties was not well received by the Bench Justice Callinan called it ldquoan extraordinary submissionrdquo

4422 Justice Gaudron cavilled at the submission by the Solicitor-General on the grounds that ldquoone half of the argument at least is concerned with matters relating to the effect of the Act ndash perhaps more than one halfrdquo and went on to say that ldquodeficienciesrdquo in the Act ldquohave been drawn to the attention of the Commonwealth in litigation for many yearsrdquo yet ldquopeople have been content more or less to leave [the Act] as it is with little thought as to how it operatesrdquo (transcript 12 May 1999 pp 65-66)

4423 The Decision in the Petitions On 23 June 1999 the Full Bench of the High Court handed down its judgment in Sue v Hill (1999) 73 ALJR 1016 and Sharples v Hill (B49 of 1998 High Court 23 June 1999 unreported) (Attachment 2) The majority of the Court (Gleeson CJ Gaudron Gummow and Hayne JJ) answered the questions in the Case Stated as follows

(a) Does s 354 of the Act validly confer upon the Court of Disputed Returns jurisdiction to determine the issues raised in the petition

Answer Yes

(b) Was the first respondent at the date of her nomination a subject or citizen of a foreign power within the meaning of s 44(i) of the Constitution

Answer Yes

(c) Was the first respondent duly elected at the election

Answer No

(d) If no to (c) was the election void absolutely

Answer No

(e) If no to (d) should the second respondent conduct a recount of the ballot papers cast for the election for the purposes of determining the candidate entitled to be elected to the place for which the first respondent was returned

Answer Inappropriate to answer

(f) Save for the otherwise dealt with by order who should pay the costs of the Stated Case and of the hearing of the Stated Case before the Full High Court

Answer The Commonwealth should pay the costs of the petitioner and the first respondent The second respondent should bear its own costs

4424 In delivering the judgment of the Court in the Sue v Hill and the Sharples v Hill petitions Chief Justice Gleeson made the following summary

In these two cases which were commenced in the Court of Disputed Returns the election of Mrs Hill as a Senator for the State of Queensland was challenged on the ground that at the date of her nomination she was incapable of being chosen as a Senator The specific ground of disqualification alleged was related to section 44(i) of the Constitution and was that at the date of nomination Mrs Hill was a subject or citizen of a foreign power namely the United Kingdom

The members of the Court who constituted the Court of Disputed Returns in each case raised certain questions for the decision of the full High Court

The first question was whether the Court of Disputed Returns has the jurisdiction invoked by the respective petitioners that is to say jurisdiction under Division 1 of Part XXII of the Commonwealth Electoral Act 1918 to consider a challenge to an election based solely on the ground of disqualification under section 44 of the Constitution Four members of the Court (Gleeson CJ Gaudron Gummow and Hayne JJ) have answered that question in the affirmative holding that there is jurisdiction Three members of the Court (McHugh Kirby Callinan JJ) have answered the question in the negative holding that jurisdiction does not exist

The three members of the Court who held that there was no jurisdiction of the kind invoked did not for that reason go on to answer the remaining questions

The four members of the Court who held that there is jurisdiction dealt with the remaining questions as follows

(a) The United Kingdom is a foreign power within the meaning of section 44 of the Constitution (b) At the time of her nomination Mrs Hill was a subject or citizen of a foreign power and was therefore incapable of being chosen as a Senator (c) Mrs Hill was therefore not duly elected (d) The consequence is not that the entire election of Senators for Queensland was void absolutely

Those four members of the Court were of the opinion that there should be a recount

As to the manner and extent of such recount these are matters upon which persons who have not been represented in the proceedings might wish to have the opportunity of being heard Accordingly each case has been remitted to the Court of Disputed Returns In the case of Sue v Hill the Court will sit at 930 am tomorrow for the purpose of considering the future course of the proceedings and if necessary giving directions

It was ordered that the Commonwealth should pay the costs of the petitioners and Mrs Hill

4425 The conclusion by the Court that other persons involved in the Queensland Senate election should be heard on the manner and extent of a recount was in response to the submissions made by Mr Sharples that the result of a recount as hypothesised by the AEC (the election of Mr Len Harris of One Nation to replace Ms Hill) might not transpire and the election or nonshyelection of the other candidates might be disturbed At paragraph 179 of the decision Justice Gaudron expanded on the doubts about the outcome of a recount that were raised in the Court by Mr Sharplesrsquo submissions

Although nothing was put to suggest that the true intention of the voters cannot be ascertained by a recount it emerged at the hearing that there was a real question as to the manner in which the recount should be conducted As formulated question (e) posits that a recount should be conducted only for the third Senate position However it is possible that a recount of all votes might have consequences for the fourth fifth and sixth Senators Those persons were not represented at the hearing It may be that that was because having regard to the terms of question (e) they were of the view that their positions would not be affected by a recount In the circumstances the appropriate course is to answer question (e) in each of the cases stated ldquoInappropriate to answerrdquo leaving the issue to be determined by a single Justice after hearing such submission if any as the persons returned as the fourth fifth and sixth Senators wish to make

45 Later Proceedings in the Petitions

451 On 24 June 1999 Chief Justice Gleeson sat as the Court of Disputed Returns to further progress the issues about the manner and extent of a recount The petitioner Mr Sue was represented by Ms Collins the first respondent Ms Hill was represented by Mr Templeton the second respondent the AEC was represented by Mr Swan of AGS and Mr Burmester QC appeared for the Attorney-General for the Commonwealth (Intervening) In addition two other persons involved in the election appeared Senator-elect Mason was represented by Mr Shannon and Senator OrsquoChee was represented by Mr Saunders

452 His Honour indicated from the outset that the purpose of the hearing was to address the concerns detailed in paragraph 179 of Justice Gaudronrsquos judgment namely that everyone who had a possible interest in a recount be given an opportunity to be heard His Honour identified three categories of such persons First Mr Len Harris the second candidate on the One Nation group voting ticket second the candidates elected in the fourth fifth and sixth positions for the Queensland Senate and third any non-elected candidate who might possibly replace any of the candidates elected to the fourth fifth and sixth positions Counsel for the AEC identified Ms Jann Piasecki Mr Drew Hutton Senator OrsquoChee and Mr John Bradford as persons who might have an interest within the categories set by the Chief Justice

453 His Honour then directed that a letter be sent immediately by the AEC to Senator-elect Ludwig Senator Woodley Mr John Bradford Mr Len Harris Ms Jann Piasecki and Mr Drew Hutton drawing their attention to the petition and the decision of the Court advising the intention to conduct a recount and that they had the opportunity to address the Court on the manner and extent of that recount

454 The Court was advised by Counsel for the AEC that if a recount was ordered by the Court it would be done by computer as permitted by section 273A of the Electoral Act and could be done the following day in approximately 45 minutes subject to the availability of scrutineers for the interested parties

455 Towards the end of these proceedings Counsel for the first respondent Ms Hill indicated that on the finding by the Full Bench that Ms Hill was not duly elected his client no longer had any interest in the proceedings He was therefore granted leave to be excused from further appearance and was not present for the costs orders at the end of these proceedings

456 On 29 June 1999 proceedings resumed before Chief Justice Gleeson by reference to a Notice of Motion of 28 June 1999 filed by the AEC setting out proposed orders and attaching a schedule for the conduct of a recount as follows

(1) A vote indicated on a ballot paper opposite the name of Heather Hill be counted to the candidate next in the order of the voterrsquos preference and the numbers indicating subsequent preferences be treated as altered accordingly (2) The further counting and recounting be conducted subject to direction (1) as nearly as practicable in accordance with the relevant provisions of section 273A of the Commonwealth Electoral Act 1918 (ldquothe Actrdquo) as if there were 6 vacancies to be filled (3) The further counting and recounting identify which candidate is entitled to be elected to the third place left unfilled by the ineligibility of Heather Hill (4) The further counting and recounting identify which (if any) candidate or candidates other than Mr Ludwig Mr Mason or Senator Woodley is or are entitled to be elected in the place of Mr Ludwig Mr Mason or Senator Woodley to any of the fourth fifth or sixth places to be filled (5) Notwithstanding direction (1) any ballot paper ruled to be informal during the 1998 scrutiny be treated as informal in the further counting and recounting (6) Notwithstanding direction (1) any ballot paper ruled to be formal during the 1998 scrutiny be treated as formal in the further counting and recounting except where a ballot paper is marked with a first preference for Heather Hill followed by the marking of a second preference for each of 2 or more other candidates (7) Notwithstanding direction (1) any ballot paper showing the same preference for Heather Hill and one or more other continuing candidates be set aside as exhausted in accordance with subsection 273(26) at the point in the scrutiny at which it would have been set aside had Heather Hill been a candidate eligible for election (8) Ballot papers marked with group voting ticket votes not be counted again but that the group voting tickets figures ascertained in the 1998 scrutiny be adjusted in accordance with direction (1) for the purposes of the further counting and recounting

457 The petitioner Mr Sue was represented by Ms Tait the second respondent the AEC was represented by Mr Swan of AGS and the Attorney-General for the Commonwealth (Intervening) was represented by Mr Burmester QC A number of other parties sought leave to intervene Mr Harris the second candidate on the One Nation group voting ticket was represented by Mr Gageler Senator Woodley was represented by Mr Davey Senator-elect Mason was represented by Mr Wood and Senator OrsquoChee was represented by Mr Applegarth An affidavit of 29 June of Mr McCarthy for the AEC testified to the notification of these parties by the AEC as ordered at the previous proceedings

458 An affidavit of 28 June of Mr Spelman of the AEC which was read to the Court by Mr Swan for the AEC advised the appropriateness of a full recount computerised in accordance with section 273A of the Electoral Act and in accordance with the directions in the schedule attached to the proposed orders and the inappropriateness of a recount that did not take into account all formal votes cast in the election

459 A full recount as proposed by the AEC was supported by Senator Woodley Senator-elect Mason Senator OrsquoChee Mr Harris and the Attorney-General on the basis that the recount would resolve whether any questions arose about disturbing the election or non-election of other candidates and that the conduct of the recount would not pre-empt any submissions they might make regarding the form of any resultant orders His Honour then ordered the AEC to conduct a full recount according to the schedule and report back to the Court with the results Costs in these proceedings were reserved

4510 On 2 July 1999 proceedings resumed before Chief Justice Gleeson with the same appearances as for 29 July with the exception that (now) Senator Mason and (now) Mr OrsquoChee were represented by Mr Wood An affidavit of 30 June of Mr Spelman of the AEC which was read to the Court by Mr Swan for the AEC advised the outcome of the full recount which was that Mr Harris achieved a quota in place of Ms Hill and the other candidates elected were unchanged from those elected at the original election

4511 With respect to costs in these later proceedings Mr Swan for the AEC and Mr Burmester for the Attorney-General submitted that each party should bear their own costs The other parties present (with the first respondent Ms Hill now absent) submitted that the Commonwealth should pay their costs under section 360(4) of the Electoral Act

4512 His Honour formally granted leave to intervene to Mr OrsquoChee Senator Mason Senator Woodley and Mr Harris and then ordered

1 That Heather Hill was not duly elected at the election held on 3 October 1998 2 That Mr Len Harris be declared duly elected as a Senator for the State of Queensland in the place for which Heather Hill was returned 3 That the second respondent and the Attorney-General for the Commonwealth each bear their own costs 4 That the Commonwealth pay the costs of the petitioner Senator Woodley Senator Mason Mr OrsquoChee and Mr Harris and their costs on previous occasions which have been reserved 5 Certify for counsel

4513 Lastly His Honour noted that Mr Sharples was not present and directed that his petition be re-listed before Justice Callinan to make such orders as he thought appropriate having regard to proceedings in the Sue petition

4514 On 29 July 1999 proceedings in the Sharples petition resumed before Justice Callinan The petitioner Mr Sharples represented himself the first respondent Ms Hill did not appear the second respondent the AEC was represented by Mr Swan of AGS the Attorney-General (Intervening) did not appear and on the question of costs the Commonwealth was represented by Mr Belcher of AGS (instructed by the AEC)

4515 His Honour ordered that

1 The petition be dismissed 2 The second respondent bear its own costs 3 The Commonwealth pay the costs of the petitioner of todayrsquos proceedings and of previous occasions on which costs were reserved

4516 The outcome on costs for both petitions was that under section 360(4) of the Electoral Act the Commonwealth was ordered to pay the costs on a partyparty basis of all the parties (except the Attorney-General and the AEC) in the proceedings extending over a period of some six months and involving numerous counsel and senior counsel Whilst the public interest in these petitions was properly served in all proceedings the award of costs against the Commonwealth will amount to a substantial cost to the public purse

4517 The AEC has now been advised by the Constitutional Unit of the Australian Government Solicitor and the Department of Finance and Administration that the costs awarded against the Commonwealth are the responsibility of the AEC There is no suggestion that the AEC was at fault in the conduct of the election or proceedings on the petitions

5 Implications of the Sue and Sharples Decisions

51 Jurisdiction of the Court of Disputed Returns

511 The majority judgment of the High Court (Gleeson CJ Gaudron Gummow and Hayne JJ) in the SueSharples petitions held that section 354 of the Electoral Act validly conferred jurisdiction upon the Court of Disputed Returns to determine the constitutional question raised in the petitions namely whether Ms Heather Hill was disqualified from being elected under section 44(i) of the Constitution

512 That is it has been concluded that the Court of Disputed Returns has jurisdiction to hear petitions raising questions of constitutional disqualifications filed under Division 1 of Part XXII of the Electoral Act The corollary is that the jurisdiction of the Court of Disputed Returns to hear questions of constitutional qualifications is not limited to matters referred to the Court by the Parliament under Division 2 of Part XXII the Electoral Act

513 The jurisdictional decision in the SueSharples petitions is in accordance with the conduct of proceedings in 1992 in Sykes v Cleary (1992) 176 CLR 77 which was initiated by way of a petition filed by Mr Ian Sykes under Division 1 of Part XXII of the Electoral Act The Sykes v Cleary decision resulted in the disqualification of Mr Phil Cleary under section 44(iv) of the Constitution for holding an office of profit under the Crown at the time of his nomination and a finding that other candidates in the by-election for the Division of Wills Mr Kardamitisis (ALP) and Mr Delacretaz (Liberal Party) were disqualified under section 44(i) of the Constitution for holding dual citizenship with Greece and Switzerland respectively

514 The jurisdictional decision in the SueSharples petitions is also in accordance with the conduct of proceedings in 1996 in Free v Kelly (1996) 70 ALJR 809 which was initiated by way of a petition filed by Mr Ross Free under Division 1 of Part XXII of the Electoral Act The Free v Kelly decision resulted in the disqualification of Ms Jackie Kelly under section 44(iv) of the Constitution for holding an office of profit under the Crown at the time of her nomination

515 The history of the separation of powers between the Parliament and the Judiciary in relation to such matters begins with the commencement of the Commonwealth in 1901 when section 47 of the Constitution prevailed

Until the Parliament otherwise provides any question respecting the qualifications of a senator or of a member of the House of Representatives or respecting a vacancy in either House of the Parliament and any question of a disputed election to either House shall be determined by the House in which the question arises

516 The Parliament then otherwise provided in sections 192-206 of the Commonwealth Electoral Act 1902 to the effect that the validity of any disputed election or return was to be decided by the High Court sitting as the Court of Disputed Returns

517 Further in section 6 of the Commonwealth Electoral Act 1907 the Parliament provided that any question on the qualifications of Members of Parliament or on a vacancy in the Parliament could be referred to the Court by resolution of the House of the Parliament in which the question arose In 1918 these two Acts were consolidated into the Commonwealth Electoral Act 1918 and now appear as Divisions 1 and 2 of Part XXII of the Electoral Act

518 The most recent example of the referral by the Parliament of a question concerning the qualifications of a Member of Parliament is the case of Senator Robert Wood in 1988 when the Senate referred the question of his qualifications by way of Division 2 of Part XXII of the Electoral Act to the Court of Disputed Returns Senator Wood was subsequently found to be disqualified by section 163 of the Electoral Act because he was not an Australian citizen

519 During the course of the 1999 proceedings in the SueSharples petitions the matter of Mr Warren Entsch MP and his alleged disqualification under section 44(v) of the Constitution was raised in the Parliament On 10 June 1999 the Leader of the Opposition moved in the House of Representatives

That the following question be referred to the Court of Disputed Returns for determination pursuant to section 376 of the Commonwealth Electoral Act 1918 Whether the place of the honourable Member for Leichhardt (Mr Entsch) has become vacant pursuant to the provisions of section 44(v) of the Constitution

5110 In response the Attorney-General moved in the House of Representatives that the motion be amended to read as follows

That the House determines that the member for Leichhardt does not have any direct or indirect pecuniary interest with the Public Service of the Commonwealth within the meaning of section 44(v) of the Constitution by reason of any contract entered into by Cape York Concrete Pty Ltd since 3 October 1998 and the member for Leichhardt is therefore not incapable of sitting as a member of this House

5111 The amendment moved by the Attorney-General was resolved in the affirmative That is in the Entsch matter the House of Representatives resolved not to refer the question of the constitutional qualifications of the Member for Leichhardt to the Court of Disputed Returns for consideration but instead resolved itself that he was not so disqualified This action asserted the right of the Parliament to make determinations on the constitutional qualifications of its own members without the involvement of the Judiciary

5112 It could be suggested that such determinations about constitutional qualifications made on the numbers in the relevant House of the Parliament might not be entirely disinterested at a political level And it might appear that anyone other than a Member of Parliament who wishes to challenge the constitutional qualifications of a sitting Member is foreclosed from doing so by the time limitation in section 355(e) of the Electoral Act which provides that a petition must be filed with the High Court within 40 days of the return of the writ for the relevant election

5113 However in those circumstances where the elected Parliament has already formed and the petition filing period has passed the Common Informers (Parliamentary Disqualifications) Act 1975 enables any person to sue the High Court for the payment of $200 per day for the period during which a Member of Parliament sits while being disqualified after being served with the originating process and the sum of $200 only in respect of a past breach The Act restricts such suits to a period no earlier than 12 months before the day on which the suit is instituted In relation to the Entsch matter this would mean that for any common informers action to be instituted Mr Entsch must have been disqualified as alleged within the 12 months preceding the date on which the suit was filed

5114 The most significant issues arising from the related matters discussed above would appear to be twofold

(a) whether the Electoral Act should continue to provide that the constitutional qualifications of Members of Parliament can be disputed by way of petition from any elector or candidate to the Court of Disputed Returns within 40 day days of the return of the writ for the election

(b) whether in the absence of either a referral to the Court of Disputed Returns by the House affected or a petition to the Court within 40 days of the return of the writ for the election or a common informerrsquos suit the Parliament should retain its authority to decide on the constitutional qualifications of its own members

5115 These issues arise out of the dispute resolution scheme provided for in the Electoral Act by the Parliament in the early part of this century and have not before been given direct consideration by the JSCEM since the major amendments to the Electoral Act in 1983 However given that these questions also go to the separation of powers between the Parliament and Judiciary and may therefore require considered submissions from all interested parties the AEC makes the following recommendation

Recommendation 1 That the JSCEM seek a reference to inquire into the powers and functions of the Australian Electoral Commission as expressed in Part II of the Electoral Act and Part I of the Referendum Act and the powers and functions of the Court of Disputed Returns as expressed in Part XXII of the Electoral Act and in Part VIII of the Referendum Act

5116 The recommendation includes reference to the powers and functions of the AEC in the context of the issues raised in part 53 below

52 Constitutional Disqualifications

521 The decision of the High Court in the SueSharples petitions was that any candidate who is a subject or citizen of a foreign power such as the United Kingdom is disqualified at the time of nomination from election to the Parliament That is Ms Heather Hill was disqualified from being elected under section 44(i) of the Constitution

522 This decision was made by the majority members of the Court (Gleeson CJ Gaudron Gummow and Hayne JJ) after they had decided that the Court of Disputed Returns had jurisdiction to hear the petition The other members of the Court (McHugh Kirby and Callinan JJ) who decided that the Court of Disputed Returns had no jurisdiction to hear the petition were not required to form a view on the constitutional qualifications question

523 This decision of the High Court on the interpretation of section 44(i) of the Constitution represents a highly significant statement about the constitutional relationship between the United Kingdom and Australia and in particular makes it very clear that persons holding dual citizenship with the United Kingdom are as equally subject to the constitutional disqualification as persons holding dual citizenship with any other foreign power

524 This may not have been clearly apparent from Sykes v Cleary in 1992 for example where after finding that Mr Phil Cleary was disqualified under section 44(iv) of the Constitution the Court went on to apply section 44(i) of the Constitution to two other candidates Mr Kardamitsis (ALP) and Mr Delacretaz (Liberal Party) who held dual citizenship with Greece and Switzerland respectively and found that they would have also been disqualified Although the Court indicated that all ldquoreasonable stepsrdquo should be taken by candidates to divest themselves of dual citizenship a doubt may have remained after this case as to whether this rule applied equally to British subjects The judgment in the SueSharples petitions should now remove any such doubts

525 However in its publications provided to intending candidates since the 1992 Sykes v Cleary decision the AEC did not find it necessary to make any such distinctions between the United Kingdom and other foreign powers in warning intending candidates to take reasonable steps to divest themselves of dual citizenship before nomination

526 For example on 17 July 1999 some three months before the 1998 federal election the AEC published Electoral Backgrounder No 4 entitled ldquoCandidate Disqualifications Section 44 of the Constitutionrdquo which provided a detailed discussion of the constitutional disqualifications for candidates at federal elections The AEC included information on how British subjects could divest themselves of dual citizenship in paragraph 27 This Backgrounder was made available to the public in hard copy from all AEC offices on the AEC Internet site (wwwaecgovau) and was provided to all candidates as part of the AEC ldquoCandidates Information Kitrdquo

434 Where the AEC is not expressly named as respondent in an election petition the AEC normally seeks leave to join as a party an entitlement provided for in section 359 of the Electoral Act in order to make submissions on the facts of the election under dispute and submissions on the appropriate relief or remedy should the petition succeed The AEC does not make submissions on constitutional issues raised in petitions as this is more appropriately for the Attorney-General for the Commonwealth who is entitled to intervene under section 78A of the Judiciary Act 1903 where constitutional issues are agitated in the High Court

435 In its amicus role in election petitions the AEC does not seek costs against other parties and does not expect costs to be awarded against it as detailed in the decision of Brennan CJ in Free v Kelly (1996) 70 ALJR 809 at 812

The Commission may be represented and heard under s 359 in at least four categories of cases cases where the Commission seeks to defend the conduct of an election or the conduct of an officer of the Commission in relation to an election cases in which the Commission intervenes for the purpose of advancing a proposition for which it seeks curial confirmation to assist it in the discharge of its statutory functions cases where the Commission adopts a partisan stance supporting one party or another and cases where the Commission merely makes appropriate reference to the Act and to authority in order to assist the Court to determine a petition

It may be appropriate to make an order for or against the Commission in the first three categories of case but in the fourth category the Commission is engaged in the proper performance of a statutory function in the public interest The appearance of the Commission in such a case ought not to enlarge the risk of costs to the other parties to the proceedings Being incidental to the proper performance of its statutory functions the cost of being represented and heard ought properly to be borne as a cost of the Commissionrsquos administration This is such a case Expressing as I do appreciation of the considerable assistance that the Commission offered ndash not least in the preparation of an agreed statement of facts ndash it is appropriate to make no order with respect to the costs of the Commission

436 At the first directions hearing in the Sue petition on 15 March 1999 Chief Justice Gleeson indicated his intention to proceed only on the single issue raised by the first respondent Ms Hill in her various summonses of whether the petition complied with sections 355(a) and (aa) of the Electoral Act in providing sufficient facts and particulars to ground the petition His Honour was critical of the petitionerrsquos general claim of a breach of section 44(i) of the Constitution which simply repeated the text of the provision without making any effort to identify what aspects were relevant or at issue and described the petition as ldquoan uncritical spray levelled at the respondent by taking the language of the statute and not bothering to work out what your case really wasrdquo (transcript 15 March 1999 page 12)

437 The question then arose as to whether the petition could be amended to delete aspects of the petition which were not properly pleaded or which the petitioner did not intend to pursue Section 44(i) of the Constitution provides three categories of disqualification (Sykes v Cleary (1992) 176 CLR 77 at 109shy111) and the terms of the petition suggested that Ms Hill was in breach of all three categories even though the only fact presented in the petition that Ms Hill was at the relevant time a citizen of Great Britain appeared to be a breach only of the second category in section 44(i) His Honour heard submissions from all parties on whether the deletion of part of a petition amounted to amending a petition which precedent case law suggested was not permissible (Nile v Wood (1988) 167 CLR 133 at 137)

438 On 19 March 1999 Chief Justice Gleeson delivered his decision on whether the petition was in compliance with section 355 of the Electoral Act and if not whether it should be dismissed or struck out (Attachment 1) His Honour concluded that the petition would have been dismissed but for the exercise of the discretionary power in section 358(2) of the Electoral Act and ordered the petitioner Mr Sue to pay the costs of the respondentrsquos (Ms Hillrsquos) costs of the application even though the respondentrsquos application for dismissal of the petition was itself dismissed The petition was allowed to proceed on the terms that the petitioner was prevented from placing any further reliance on any allegations that fell within either the first or the third categories of disqualification in section 44(i) of the Constitution

439 On the same day in further directions Chief Justice Gleeson proposed that the Sue and the Sharples petitions should be managed separately at this stage Mr Sharples who was not represented had filed his petition in Brisbane and his petition was assigned to Justice Callinan to progress the matter in Brisbane

4310 Chief Justice Gleeson then stated his intention consistent with the wishes of the parties to refer the substantive questions arising under of the Sue petition to the Full Court of the High Court pursuant to section 18 of the Judiciary Act 1903 Assuming the power to state a case His Honour directed the parties to prepare a draft case stated for the consideration of the Full Court There was general agreement between the parties that the case stated would contain a number of questions but should at least include a question as to whether the petitioner had taken all ldquoreasonable stepsrdquo to renounce her citizenship of Great Britain according to the test provided in Sykes v Cleary and a question as to whether Great Britain is a ldquoforeign powerrdquo

4311 It was indicated that it was likely that the matter would be listed before the Full Court on 11 and 12 May 1999 in Canberra The proceedings would involve consideration of a Stated Case in the context of an Agreed Statement of Facts There was general agreement between the parties that the facts would be relatively few and the parties did not anticipate any disagreement as to the facts

4312 His Honour noted tentative agreement between the parties that if the petition were successful a recount would be the appropriate remedy and that the person placed second on the One Nation Partyrsquos group voting ticket would in all probability be the person who should be declared duly elected pursuant to section 360(1)(iv) of the Electoral Act His Honour suggested that that person Mr Len Harris would have to have an interest in the proceedings and might wish to be heard The matter was adjourned with costs in these preliminary proceedings

4313 On 29 March 1999 directions resumed before Chief Justice Gleeson and the draft Case Stated in the Sue petition was settled between the parties On 30 March 1999 His Honour signed the Case Stated with the following questions being referred to the Full Bench of the High Court

(a) Does s 354 of the Act validly confer upon the Court of Disputed Returns jurisdiction to determine the issues raised in the petition (b) Was the first respondent at the date of her nomination a subject or citizen of a foreign power within the meaning of s 44(i) of the Constitution (c) Was the first respondent duly elected at the election (d) If no to (c) was the election void absolutely (e) If no to (d) should the second respondent conduct a recount of the ballot papers cast for the election for the purposes of determining the candidate entitled to be elected to the place for which the first respondent was returned (f) Save for the otherwise dealt with by order who should pay the costs of the Stated Case and of the hearing of the Stated Case before the Full High Court

4314 On 1 April 1999 a directions hearing on the Sharples petition was held by Justice Callinan in Brisbane with Mr Sharples representing himself and Mr Templeton representing the respondent Ms Hill The AEC represented by Mr Maurice Swan of the Australian Government Solicitor was granted leave to enter an appearance as a party to the petition and the AEC thereby became the second respondent to the Sharples petition Justice Callinan indicated that he was inclined to follow the same course as set by Chief Justice Gleeson in the Sue petition and asked for an Agreed Statement of Facts and a draft Case Stated from the parties The matter was adjourned to 22 April 1999

4315 In negotiations between the parties on the preparation of the draft Statement of Facts and Case Stated the petitioner Mr Sharples expressed his substantial disagreement with the Statement of Facts in the Case Stated already concluded in the Sue petition proceedings despite the respondents (Ms Hill and the AEC) expressing the view that the Statement of Facts in the Case Stated in the Sharples petition proceedings should be the same (with the omission only of a paragraph that was peculiar to the Sue Case Stated)

4316 On 22 April in directions before Justice Callinan His Honour ruled on the various points of disagreement in the draft Statement of Facts in the Case Stated between the petitioner Mr Sharples and the two respondents Ms Hill and the AEC This resulted in the addition of the numbers of first preference votes ldquoabove the linerdquo and ldquobelow the linerdquo received by Ms Hill which Mr Sharples submitted would be pertinent to his argument for a Senate ldquoby-electionrdquo or fresh election However His Honour declined to make any changes to the questions in the Case Stated that were agreed in the Sue petition proceedings

4317 At the conclusion of the directions hearing Justice Callinan directed the parties to join in the preparation of a document to reflect the various amendments as ordered to the draft Statement of Facts in the Case Stated in the Sharples proceedings and directed that the amended document be submitted to him by 27 April for certification and referral to the Full Bench Costs in these preliminary proceedings were reserved

4318 Following these proceedings the petitioner Mr Sharples wrote various letters to the other parties expressing his dissatisfaction with the proceedings and filed an affidavit with the Court (which was not served on the other parties) complaining about the conduct of the other parties in negotiations In the event Justice Callinan certified the Case Stated and Statement of Facts in the Sharples petition proceedings and the matter was listed for hearing concurrently or consecutively with the Sue petition proceedings on 11-12 May

44 Substantive Proceedings in the Petitions

441 The hearing by the Full Bench of the High Court of the Case Stated in the Sue petition and the Case Stated in the Sharples petition took place on 11-12 May 1999 in Canberra and because of the number and length of submissions was extended on the second day for another day into 13 May

442 The first petitioner Mr Sue was represented by Mr Stephen Finch SC with Ms Elizabeth Collins The second petitioner Mr Sharples represented himself The first respondent to each petition Ms Heather Hill was represented by Mr Robert Ellicott QC and Mr David Rofe QC with Mr Anthony Tudehope The second respondent to each petition the AEC was represented by Mr Maurice Swan a barrister from the Australian Government Solicitor with considerable experience in disputed proportional representation elections The Attorney-General for the Commonwealth (Intervening) was represented by the Solicitor-General Mr David Bennett QC with Mr Nye Perram and Mr Christopher Ward

443 The first day of the hearing was occupied with the first question in the Case Stated ldquoDoes section 354 of the Act validly confer upon the Court of Disputed Returns jurisdiction to determine the issues raised in the petitionrdquo Counsel for the first respondent Ms Hill submitted that the purported conferral of power upon the Court under section 354 of the Electoral Act was invalid because it contravened the doctrine of separation of powers That is the determination of disputed elections and returns is ancillary to the legislative function of the Parliament and is not a judicial function

444 It was also submitted by Counsel for Ms Hill that even if the Court had jurisdiction to try the petition its powers did not extend to ruling upon whether the first respondent was incapable of being chosen by reason of section 44(i) of the Constitution That is when hearing a petition filed under Division 1 of Part XXII of the Electoral Act the Court is limited to consideration of alleged illegal practices per section 362 of the Act and Division 1 does not confer power on the Court to hear claims in a petition of constitutional disqualification

445 It was further submitted by Counsel for Ms Hill that the Courtrsquos power to consider whether a person was qualified to be a Member of Parliament arises only in Division 2 of Part XXII of the Electoral Act by means of a question referred to the Court by resolution of the relevant House of the Parliament This is why additional powers are conferred on the Court pursuant to section 379 of the Act Counsel for the first respondent relied on the judgment of Gaudron J in Hudson v Lee (1993) 115 ALR 343 where Her Honour held that section 362 of the Act was an ldquoexhaustive statementrdquo of the circumstances in which an election might be declared invalid or void in answer to a petition filed under Division 1 of Part XXII of the Act

446 In response Counsel for the petitioner Mr Sue and the Solicitor-General for the Commonwealth both submitted that the Court should not adopt such an unduly narrow reading of Part XXII of the Electoral Act The Solicitor-General submitted that the view expressed by Gaudron J in Hudson v Lee is limited to questions of misconduct and is authority only for the proposition that misconduct is not actionable unless it finds a source in section 362 of the Act The AEC made no submissions in relation to this first question in the Case Stated

447 The question whether the Court had jurisdiction to determine whether the first respondent Ms Hill was ldquoincapable of being chosenrdquo as a Senator by reason of section 44(i) of the Constitution inevitably drew the Court into the question whether it was sitting as the High Court of Australia and thus having the jurisdiction conferred on the High Court by the Constitution or whether it was sitting as a separate statutory Court namely the Court of Disputed Returns and thus having the jurisdiction conferred on it under Part XXII of the Electoral Act

448 The second question in the Case Stated ldquoWas the first respondent at the date of her nomination a subject or citizen of a foreign powerrdquo was dealt with in two parts whether the United Kingdom is a ldquoforeign powerrdquo for the purposes of section 44(i) of the Constitution and whether Ms Hill was a ldquosubject or citizenrdquo of the United Kingdom irrespective of whether the United Kingdom is a foreign power The AEC made no submissions in relation to this second question in the Case Stated

449 There was little disagreement between the parties concerned that when section 44(i) was enacted the framers of the Constitution did not envisage the phrase ldquoforeign powerrdquo to include the United Kingdom Indeed until 1948 and the passing of the Nationality and Citizenship Act 1948 citizenship of the United Kingdom was the norm for the majority of Australians

4410 Counsel for the first respondent Ms Hill submitted that as at 1900 the phrase ldquoforeign powerrdquo did not and was not intended to include the United Kingdom and that none of the events circumstances or legislative enactments since 1900 have converted the special and unique relationship between the Commonwealth of Australia and the United Kingdom into a relationship now between the Commonwealth and a ldquoforeign powerrdquo It was submitted that the relationship was like that between a parent and a child which forever binds the child to the parent

4411 In relation to whether Ms Hill was a ldquosubject or a citizenrdquo of the United Kingdom Counsel for Ms Hill endeavoured to distinguish the Courtrsquos decision in Sykes v Cleary (1992) 176 CLR 77 on the grounds that Ms Hill was at the time of her nomination an Australian citizen This it was submitted was enough to avoid the operation of section 44(i)

4412 In response Counsel for the petitioner Mr Sue and the Solicitor-General for the Commonwealth both submitted that the United Kingdom is a ldquoforeign powerrdquo for the purposes of section 44(i) of the Constitution Counsel for the petitioner further submitted that even if the United Kingdom was not a foreign power in 1900 and even if difficulties arise in identifying the exact point in time when it became a foreign power it can nevertheless be said with confidence that the emergence of Australia as an independent nation and the occurrence of various relevant events particularly the passage of the Australia Act 1986 mean that at least when Ms Hill was nominated for election the United Kingdom had truly become a ldquoforeign powerrdquo

4413 Finally Counsel for the petitioner Mr Sue and the Solicitor-General for the Commonwealth both submitted that at the date of her nomination Ms Hill held British citizenship and had not taken all reasonable (or any) steps to divest herself of that citizenship In particular she had not made the appropriate declaration of renunciation of that citizenship as per Sykes v Cleary That is if the United Kingdom is a ldquoforeign powerrdquo within the meaning of section 44(i) then Ms Hill was incapable of being chosen as a Senator

4414 In relation to the third question in the Case Stated ldquoWas the first respondent duly elected at the electionrdquo there was common ground between the parties that if the Court found that at the date of her nomination Ms Hill was incapable of being chosen as a Senator by reason of her being a subject or citizen of a foreign power then it must follow that the first respondent was not duly elected at the election

4415 In relation to the fourth question in the Case Stated ldquoIf the first respondent was not duly elected was the election absolutely voidrdquo the parties in Sue v Hill agreed with the submission by the Solicitor-General for the Commonwealth that this question should be answered in the negative that is the election should not be declared absolutely void and a recount would be the appropriate remedy However the second petitioner Mr Sharples submitted that the question should be answered in the positive and a ldquowhole new electionrdquo should be conducted

4416 In relation to the fifth question in the Case Stated ldquoIf the election should not be declared void absolutely should the second respondent conduct a recount of the ballot papers cast for the purpose of determining the candidate entitled to be declared electedrdquo Counsel for the AEC submitted that a recount of the ballot papers for the position of Ms Hill would be the most appropriate remedy per In re Wood (1988) 167 CLR 145 Counsel for the petitioner Mr Sue Counsel for the first respondent Ms Hill and the Solicitor-General for the Commonwealth agreed with the submissions of the AEC

4417 In response to questions from the Bench Counsel for the AEC further submitted that it was highly probable that a member of the same political party as Ms Hill would be elected in her place on a recount of the ballot papers That is a recount would probably elect Mr Len Harris of One Nation in place of Ms Hill of One Nation because around 99 of electors who voted 1 for Ms Hill voted 2 for Mr Harris the second candidate on the One Nation group voting ticket Nevertheless until the recount was actually conducted this remained an hypothetical proposition

4418 In opposition to the submissions of the AEC the second petitioner Mr Sharples submitted that the Court could not be absolutely confident that the votersrsquo original intentions would be reflected by a recount given the distribution of first preferences for Ms Hill above and below the line on the ballot papers He referred also to the fact that Ms Hill was elected third in a field of six whilst in the precedent case In re Wood Mr Wood was elected last in a field of twelve He submitted that a fresh election was therefore the most appropriate remedy The Court then ordered Counsel for the AEC to provide further written submissions on the different consequences that might flow from the different order in which Mr Wood was elected in 1988 and Ms Hill in 1998

4419 The further written submissions were filed by the AEC on 18 May 1999 and showed that in its amicus role the AEC had given early consideration as to whether the election of other candidates would be disturbed by a recount if Ms Hill were to be disqualified and had concluded that this was so unlikely that their involvement in the proceedings need not be suggested to the Court The AEC further submitted that the different order of election in the Wood and the Hill cases would not change the fact that Mr Harris of One Nation would most probably be elected on a recount to replace Ms Hill In the event Mr Sharples chose to file further written submissions in response to the further written submissions of the AEC in which he endeavoured to distinguish In re Wood and further argued the case for a fresh election

4420 The sixth and final question in the Case Stated was ldquoSave for those otherwise dealt with by order who should pay the costs of the Stated Case and of the hearing of the Stated Case before the Full High Courtrdquo Counsel for the petitioner Mr Sue submitted that if the petition was successful the first respondent Ms Hill should pay his costs Counsel for the first respondent Ms Hill submitted that the Commonwealth should pay her costs because the questions raised were ldquoof great contemporary importancerdquo Alternatively it was submitted that if the petition failed then her costs should be paid by the petitioner The AEC submitted that no costs order should be made against the AEC and sought no costs order against the other parties

4421 The Solicitor-General for the Commonwealth submitted that no costs order should be made against the Commonwealth (under section 360(4) of the Electoral Act) and sought no costs order against the other parties The submission that the Commonwealth should not pay the costs of the other parties was not well received by the Bench Justice Callinan called it ldquoan extraordinary submissionrdquo

4422 Justice Gaudron cavilled at the submission by the Solicitor-General on the grounds that ldquoone half of the argument at least is concerned with matters relating to the effect of the Act ndash perhaps more than one halfrdquo and went on to say that ldquodeficienciesrdquo in the Act ldquohave been drawn to the attention of the Commonwealth in litigation for many yearsrdquo yet ldquopeople have been content more or less to leave [the Act] as it is with little thought as to how it operatesrdquo (transcript 12 May 1999 pp 65-66)

4423 The Decision in the Petitions On 23 June 1999 the Full Bench of the High Court handed down its judgment in Sue v Hill (1999) 73 ALJR 1016 and Sharples v Hill (B49 of 1998 High Court 23 June 1999 unreported) (Attachment 2) The majority of the Court (Gleeson CJ Gaudron Gummow and Hayne JJ) answered the questions in the Case Stated as follows

(a) Does s 354 of the Act validly confer upon the Court of Disputed Returns jurisdiction to determine the issues raised in the petition

Answer Yes

(b) Was the first respondent at the date of her nomination a subject or citizen of a foreign power within the meaning of s 44(i) of the Constitution

Answer Yes

(c) Was the first respondent duly elected at the election

Answer No

(d) If no to (c) was the election void absolutely

Answer No

(e) If no to (d) should the second respondent conduct a recount of the ballot papers cast for the election for the purposes of determining the candidate entitled to be elected to the place for which the first respondent was returned

Answer Inappropriate to answer

(f) Save for the otherwise dealt with by order who should pay the costs of the Stated Case and of the hearing of the Stated Case before the Full High Court

Answer The Commonwealth should pay the costs of the petitioner and the first respondent The second respondent should bear its own costs

4424 In delivering the judgment of the Court in the Sue v Hill and the Sharples v Hill petitions Chief Justice Gleeson made the following summary

In these two cases which were commenced in the Court of Disputed Returns the election of Mrs Hill as a Senator for the State of Queensland was challenged on the ground that at the date of her nomination she was incapable of being chosen as a Senator The specific ground of disqualification alleged was related to section 44(i) of the Constitution and was that at the date of nomination Mrs Hill was a subject or citizen of a foreign power namely the United Kingdom

The members of the Court who constituted the Court of Disputed Returns in each case raised certain questions for the decision of the full High Court

The first question was whether the Court of Disputed Returns has the jurisdiction invoked by the respective petitioners that is to say jurisdiction under Division 1 of Part XXII of the Commonwealth Electoral Act 1918 to consider a challenge to an election based solely on the ground of disqualification under section 44 of the Constitution Four members of the Court (Gleeson CJ Gaudron Gummow and Hayne JJ) have answered that question in the affirmative holding that there is jurisdiction Three members of the Court (McHugh Kirby Callinan JJ) have answered the question in the negative holding that jurisdiction does not exist

The three members of the Court who held that there was no jurisdiction of the kind invoked did not for that reason go on to answer the remaining questions

The four members of the Court who held that there is jurisdiction dealt with the remaining questions as follows

(a) The United Kingdom is a foreign power within the meaning of section 44 of the Constitution (b) At the time of her nomination Mrs Hill was a subject or citizen of a foreign power and was therefore incapable of being chosen as a Senator (c) Mrs Hill was therefore not duly elected (d) The consequence is not that the entire election of Senators for Queensland was void absolutely

Those four members of the Court were of the opinion that there should be a recount

As to the manner and extent of such recount these are matters upon which persons who have not been represented in the proceedings might wish to have the opportunity of being heard Accordingly each case has been remitted to the Court of Disputed Returns In the case of Sue v Hill the Court will sit at 930 am tomorrow for the purpose of considering the future course of the proceedings and if necessary giving directions

It was ordered that the Commonwealth should pay the costs of the petitioners and Mrs Hill

4425 The conclusion by the Court that other persons involved in the Queensland Senate election should be heard on the manner and extent of a recount was in response to the submissions made by Mr Sharples that the result of a recount as hypothesised by the AEC (the election of Mr Len Harris of One Nation to replace Ms Hill) might not transpire and the election or nonshyelection of the other candidates might be disturbed At paragraph 179 of the decision Justice Gaudron expanded on the doubts about the outcome of a recount that were raised in the Court by Mr Sharplesrsquo submissions

Although nothing was put to suggest that the true intention of the voters cannot be ascertained by a recount it emerged at the hearing that there was a real question as to the manner in which the recount should be conducted As formulated question (e) posits that a recount should be conducted only for the third Senate position However it is possible that a recount of all votes might have consequences for the fourth fifth and sixth Senators Those persons were not represented at the hearing It may be that that was because having regard to the terms of question (e) they were of the view that their positions would not be affected by a recount In the circumstances the appropriate course is to answer question (e) in each of the cases stated ldquoInappropriate to answerrdquo leaving the issue to be determined by a single Justice after hearing such submission if any as the persons returned as the fourth fifth and sixth Senators wish to make

45 Later Proceedings in the Petitions

451 On 24 June 1999 Chief Justice Gleeson sat as the Court of Disputed Returns to further progress the issues about the manner and extent of a recount The petitioner Mr Sue was represented by Ms Collins the first respondent Ms Hill was represented by Mr Templeton the second respondent the AEC was represented by Mr Swan of AGS and Mr Burmester QC appeared for the Attorney-General for the Commonwealth (Intervening) In addition two other persons involved in the election appeared Senator-elect Mason was represented by Mr Shannon and Senator OrsquoChee was represented by Mr Saunders

452 His Honour indicated from the outset that the purpose of the hearing was to address the concerns detailed in paragraph 179 of Justice Gaudronrsquos judgment namely that everyone who had a possible interest in a recount be given an opportunity to be heard His Honour identified three categories of such persons First Mr Len Harris the second candidate on the One Nation group voting ticket second the candidates elected in the fourth fifth and sixth positions for the Queensland Senate and third any non-elected candidate who might possibly replace any of the candidates elected to the fourth fifth and sixth positions Counsel for the AEC identified Ms Jann Piasecki Mr Drew Hutton Senator OrsquoChee and Mr John Bradford as persons who might have an interest within the categories set by the Chief Justice

453 His Honour then directed that a letter be sent immediately by the AEC to Senator-elect Ludwig Senator Woodley Mr John Bradford Mr Len Harris Ms Jann Piasecki and Mr Drew Hutton drawing their attention to the petition and the decision of the Court advising the intention to conduct a recount and that they had the opportunity to address the Court on the manner and extent of that recount

454 The Court was advised by Counsel for the AEC that if a recount was ordered by the Court it would be done by computer as permitted by section 273A of the Electoral Act and could be done the following day in approximately 45 minutes subject to the availability of scrutineers for the interested parties

455 Towards the end of these proceedings Counsel for the first respondent Ms Hill indicated that on the finding by the Full Bench that Ms Hill was not duly elected his client no longer had any interest in the proceedings He was therefore granted leave to be excused from further appearance and was not present for the costs orders at the end of these proceedings

456 On 29 June 1999 proceedings resumed before Chief Justice Gleeson by reference to a Notice of Motion of 28 June 1999 filed by the AEC setting out proposed orders and attaching a schedule for the conduct of a recount as follows

(1) A vote indicated on a ballot paper opposite the name of Heather Hill be counted to the candidate next in the order of the voterrsquos preference and the numbers indicating subsequent preferences be treated as altered accordingly (2) The further counting and recounting be conducted subject to direction (1) as nearly as practicable in accordance with the relevant provisions of section 273A of the Commonwealth Electoral Act 1918 (ldquothe Actrdquo) as if there were 6 vacancies to be filled (3) The further counting and recounting identify which candidate is entitled to be elected to the third place left unfilled by the ineligibility of Heather Hill (4) The further counting and recounting identify which (if any) candidate or candidates other than Mr Ludwig Mr Mason or Senator Woodley is or are entitled to be elected in the place of Mr Ludwig Mr Mason or Senator Woodley to any of the fourth fifth or sixth places to be filled (5) Notwithstanding direction (1) any ballot paper ruled to be informal during the 1998 scrutiny be treated as informal in the further counting and recounting (6) Notwithstanding direction (1) any ballot paper ruled to be formal during the 1998 scrutiny be treated as formal in the further counting and recounting except where a ballot paper is marked with a first preference for Heather Hill followed by the marking of a second preference for each of 2 or more other candidates (7) Notwithstanding direction (1) any ballot paper showing the same preference for Heather Hill and one or more other continuing candidates be set aside as exhausted in accordance with subsection 273(26) at the point in the scrutiny at which it would have been set aside had Heather Hill been a candidate eligible for election (8) Ballot papers marked with group voting ticket votes not be counted again but that the group voting tickets figures ascertained in the 1998 scrutiny be adjusted in accordance with direction (1) for the purposes of the further counting and recounting

457 The petitioner Mr Sue was represented by Ms Tait the second respondent the AEC was represented by Mr Swan of AGS and the Attorney-General for the Commonwealth (Intervening) was represented by Mr Burmester QC A number of other parties sought leave to intervene Mr Harris the second candidate on the One Nation group voting ticket was represented by Mr Gageler Senator Woodley was represented by Mr Davey Senator-elect Mason was represented by Mr Wood and Senator OrsquoChee was represented by Mr Applegarth An affidavit of 29 June of Mr McCarthy for the AEC testified to the notification of these parties by the AEC as ordered at the previous proceedings

458 An affidavit of 28 June of Mr Spelman of the AEC which was read to the Court by Mr Swan for the AEC advised the appropriateness of a full recount computerised in accordance with section 273A of the Electoral Act and in accordance with the directions in the schedule attached to the proposed orders and the inappropriateness of a recount that did not take into account all formal votes cast in the election

459 A full recount as proposed by the AEC was supported by Senator Woodley Senator-elect Mason Senator OrsquoChee Mr Harris and the Attorney-General on the basis that the recount would resolve whether any questions arose about disturbing the election or non-election of other candidates and that the conduct of the recount would not pre-empt any submissions they might make regarding the form of any resultant orders His Honour then ordered the AEC to conduct a full recount according to the schedule and report back to the Court with the results Costs in these proceedings were reserved

4510 On 2 July 1999 proceedings resumed before Chief Justice Gleeson with the same appearances as for 29 July with the exception that (now) Senator Mason and (now) Mr OrsquoChee were represented by Mr Wood An affidavit of 30 June of Mr Spelman of the AEC which was read to the Court by Mr Swan for the AEC advised the outcome of the full recount which was that Mr Harris achieved a quota in place of Ms Hill and the other candidates elected were unchanged from those elected at the original election

4511 With respect to costs in these later proceedings Mr Swan for the AEC and Mr Burmester for the Attorney-General submitted that each party should bear their own costs The other parties present (with the first respondent Ms Hill now absent) submitted that the Commonwealth should pay their costs under section 360(4) of the Electoral Act

4512 His Honour formally granted leave to intervene to Mr OrsquoChee Senator Mason Senator Woodley and Mr Harris and then ordered

1 That Heather Hill was not duly elected at the election held on 3 October 1998 2 That Mr Len Harris be declared duly elected as a Senator for the State of Queensland in the place for which Heather Hill was returned 3 That the second respondent and the Attorney-General for the Commonwealth each bear their own costs 4 That the Commonwealth pay the costs of the petitioner Senator Woodley Senator Mason Mr OrsquoChee and Mr Harris and their costs on previous occasions which have been reserved 5 Certify for counsel

4513 Lastly His Honour noted that Mr Sharples was not present and directed that his petition be re-listed before Justice Callinan to make such orders as he thought appropriate having regard to proceedings in the Sue petition

4514 On 29 July 1999 proceedings in the Sharples petition resumed before Justice Callinan The petitioner Mr Sharples represented himself the first respondent Ms Hill did not appear the second respondent the AEC was represented by Mr Swan of AGS the Attorney-General (Intervening) did not appear and on the question of costs the Commonwealth was represented by Mr Belcher of AGS (instructed by the AEC)

4515 His Honour ordered that

1 The petition be dismissed 2 The second respondent bear its own costs 3 The Commonwealth pay the costs of the petitioner of todayrsquos proceedings and of previous occasions on which costs were reserved

4516 The outcome on costs for both petitions was that under section 360(4) of the Electoral Act the Commonwealth was ordered to pay the costs on a partyparty basis of all the parties (except the Attorney-General and the AEC) in the proceedings extending over a period of some six months and involving numerous counsel and senior counsel Whilst the public interest in these petitions was properly served in all proceedings the award of costs against the Commonwealth will amount to a substantial cost to the public purse

4517 The AEC has now been advised by the Constitutional Unit of the Australian Government Solicitor and the Department of Finance and Administration that the costs awarded against the Commonwealth are the responsibility of the AEC There is no suggestion that the AEC was at fault in the conduct of the election or proceedings on the petitions

5 Implications of the Sue and Sharples Decisions

51 Jurisdiction of the Court of Disputed Returns

511 The majority judgment of the High Court (Gleeson CJ Gaudron Gummow and Hayne JJ) in the SueSharples petitions held that section 354 of the Electoral Act validly conferred jurisdiction upon the Court of Disputed Returns to determine the constitutional question raised in the petitions namely whether Ms Heather Hill was disqualified from being elected under section 44(i) of the Constitution

512 That is it has been concluded that the Court of Disputed Returns has jurisdiction to hear petitions raising questions of constitutional disqualifications filed under Division 1 of Part XXII of the Electoral Act The corollary is that the jurisdiction of the Court of Disputed Returns to hear questions of constitutional qualifications is not limited to matters referred to the Court by the Parliament under Division 2 of Part XXII the Electoral Act

513 The jurisdictional decision in the SueSharples petitions is in accordance with the conduct of proceedings in 1992 in Sykes v Cleary (1992) 176 CLR 77 which was initiated by way of a petition filed by Mr Ian Sykes under Division 1 of Part XXII of the Electoral Act The Sykes v Cleary decision resulted in the disqualification of Mr Phil Cleary under section 44(iv) of the Constitution for holding an office of profit under the Crown at the time of his nomination and a finding that other candidates in the by-election for the Division of Wills Mr Kardamitisis (ALP) and Mr Delacretaz (Liberal Party) were disqualified under section 44(i) of the Constitution for holding dual citizenship with Greece and Switzerland respectively

514 The jurisdictional decision in the SueSharples petitions is also in accordance with the conduct of proceedings in 1996 in Free v Kelly (1996) 70 ALJR 809 which was initiated by way of a petition filed by Mr Ross Free under Division 1 of Part XXII of the Electoral Act The Free v Kelly decision resulted in the disqualification of Ms Jackie Kelly under section 44(iv) of the Constitution for holding an office of profit under the Crown at the time of her nomination

515 The history of the separation of powers between the Parliament and the Judiciary in relation to such matters begins with the commencement of the Commonwealth in 1901 when section 47 of the Constitution prevailed

Until the Parliament otherwise provides any question respecting the qualifications of a senator or of a member of the House of Representatives or respecting a vacancy in either House of the Parliament and any question of a disputed election to either House shall be determined by the House in which the question arises

516 The Parliament then otherwise provided in sections 192-206 of the Commonwealth Electoral Act 1902 to the effect that the validity of any disputed election or return was to be decided by the High Court sitting as the Court of Disputed Returns

517 Further in section 6 of the Commonwealth Electoral Act 1907 the Parliament provided that any question on the qualifications of Members of Parliament or on a vacancy in the Parliament could be referred to the Court by resolution of the House of the Parliament in which the question arose In 1918 these two Acts were consolidated into the Commonwealth Electoral Act 1918 and now appear as Divisions 1 and 2 of Part XXII of the Electoral Act

518 The most recent example of the referral by the Parliament of a question concerning the qualifications of a Member of Parliament is the case of Senator Robert Wood in 1988 when the Senate referred the question of his qualifications by way of Division 2 of Part XXII of the Electoral Act to the Court of Disputed Returns Senator Wood was subsequently found to be disqualified by section 163 of the Electoral Act because he was not an Australian citizen

519 During the course of the 1999 proceedings in the SueSharples petitions the matter of Mr Warren Entsch MP and his alleged disqualification under section 44(v) of the Constitution was raised in the Parliament On 10 June 1999 the Leader of the Opposition moved in the House of Representatives

That the following question be referred to the Court of Disputed Returns for determination pursuant to section 376 of the Commonwealth Electoral Act 1918 Whether the place of the honourable Member for Leichhardt (Mr Entsch) has become vacant pursuant to the provisions of section 44(v) of the Constitution

5110 In response the Attorney-General moved in the House of Representatives that the motion be amended to read as follows

That the House determines that the member for Leichhardt does not have any direct or indirect pecuniary interest with the Public Service of the Commonwealth within the meaning of section 44(v) of the Constitution by reason of any contract entered into by Cape York Concrete Pty Ltd since 3 October 1998 and the member for Leichhardt is therefore not incapable of sitting as a member of this House

5111 The amendment moved by the Attorney-General was resolved in the affirmative That is in the Entsch matter the House of Representatives resolved not to refer the question of the constitutional qualifications of the Member for Leichhardt to the Court of Disputed Returns for consideration but instead resolved itself that he was not so disqualified This action asserted the right of the Parliament to make determinations on the constitutional qualifications of its own members without the involvement of the Judiciary

5112 It could be suggested that such determinations about constitutional qualifications made on the numbers in the relevant House of the Parliament might not be entirely disinterested at a political level And it might appear that anyone other than a Member of Parliament who wishes to challenge the constitutional qualifications of a sitting Member is foreclosed from doing so by the time limitation in section 355(e) of the Electoral Act which provides that a petition must be filed with the High Court within 40 days of the return of the writ for the relevant election

5113 However in those circumstances where the elected Parliament has already formed and the petition filing period has passed the Common Informers (Parliamentary Disqualifications) Act 1975 enables any person to sue the High Court for the payment of $200 per day for the period during which a Member of Parliament sits while being disqualified after being served with the originating process and the sum of $200 only in respect of a past breach The Act restricts such suits to a period no earlier than 12 months before the day on which the suit is instituted In relation to the Entsch matter this would mean that for any common informers action to be instituted Mr Entsch must have been disqualified as alleged within the 12 months preceding the date on which the suit was filed

5114 The most significant issues arising from the related matters discussed above would appear to be twofold

(a) whether the Electoral Act should continue to provide that the constitutional qualifications of Members of Parliament can be disputed by way of petition from any elector or candidate to the Court of Disputed Returns within 40 day days of the return of the writ for the election

(b) whether in the absence of either a referral to the Court of Disputed Returns by the House affected or a petition to the Court within 40 days of the return of the writ for the election or a common informerrsquos suit the Parliament should retain its authority to decide on the constitutional qualifications of its own members

5115 These issues arise out of the dispute resolution scheme provided for in the Electoral Act by the Parliament in the early part of this century and have not before been given direct consideration by the JSCEM since the major amendments to the Electoral Act in 1983 However given that these questions also go to the separation of powers between the Parliament and Judiciary and may therefore require considered submissions from all interested parties the AEC makes the following recommendation

Recommendation 1 That the JSCEM seek a reference to inquire into the powers and functions of the Australian Electoral Commission as expressed in Part II of the Electoral Act and Part I of the Referendum Act and the powers and functions of the Court of Disputed Returns as expressed in Part XXII of the Electoral Act and in Part VIII of the Referendum Act

5116 The recommendation includes reference to the powers and functions of the AEC in the context of the issues raised in part 53 below

52 Constitutional Disqualifications

521 The decision of the High Court in the SueSharples petitions was that any candidate who is a subject or citizen of a foreign power such as the United Kingdom is disqualified at the time of nomination from election to the Parliament That is Ms Heather Hill was disqualified from being elected under section 44(i) of the Constitution

522 This decision was made by the majority members of the Court (Gleeson CJ Gaudron Gummow and Hayne JJ) after they had decided that the Court of Disputed Returns had jurisdiction to hear the petition The other members of the Court (McHugh Kirby and Callinan JJ) who decided that the Court of Disputed Returns had no jurisdiction to hear the petition were not required to form a view on the constitutional qualifications question

523 This decision of the High Court on the interpretation of section 44(i) of the Constitution represents a highly significant statement about the constitutional relationship between the United Kingdom and Australia and in particular makes it very clear that persons holding dual citizenship with the United Kingdom are as equally subject to the constitutional disqualification as persons holding dual citizenship with any other foreign power

524 This may not have been clearly apparent from Sykes v Cleary in 1992 for example where after finding that Mr Phil Cleary was disqualified under section 44(iv) of the Constitution the Court went on to apply section 44(i) of the Constitution to two other candidates Mr Kardamitsis (ALP) and Mr Delacretaz (Liberal Party) who held dual citizenship with Greece and Switzerland respectively and found that they would have also been disqualified Although the Court indicated that all ldquoreasonable stepsrdquo should be taken by candidates to divest themselves of dual citizenship a doubt may have remained after this case as to whether this rule applied equally to British subjects The judgment in the SueSharples petitions should now remove any such doubts

525 However in its publications provided to intending candidates since the 1992 Sykes v Cleary decision the AEC did not find it necessary to make any such distinctions between the United Kingdom and other foreign powers in warning intending candidates to take reasonable steps to divest themselves of dual citizenship before nomination

526 For example on 17 July 1999 some three months before the 1998 federal election the AEC published Electoral Backgrounder No 4 entitled ldquoCandidate Disqualifications Section 44 of the Constitutionrdquo which provided a detailed discussion of the constitutional disqualifications for candidates at federal elections The AEC included information on how British subjects could divest themselves of dual citizenship in paragraph 27 This Backgrounder was made available to the public in hard copy from all AEC offices on the AEC Internet site (wwwaecgovau) and was provided to all candidates as part of the AEC ldquoCandidates Information Kitrdquo

437 The question then arose as to whether the petition could be amended to delete aspects of the petition which were not properly pleaded or which the petitioner did not intend to pursue Section 44(i) of the Constitution provides three categories of disqualification (Sykes v Cleary (1992) 176 CLR 77 at 109shy111) and the terms of the petition suggested that Ms Hill was in breach of all three categories even though the only fact presented in the petition that Ms Hill was at the relevant time a citizen of Great Britain appeared to be a breach only of the second category in section 44(i) His Honour heard submissions from all parties on whether the deletion of part of a petition amounted to amending a petition which precedent case law suggested was not permissible (Nile v Wood (1988) 167 CLR 133 at 137)

438 On 19 March 1999 Chief Justice Gleeson delivered his decision on whether the petition was in compliance with section 355 of the Electoral Act and if not whether it should be dismissed or struck out (Attachment 1) His Honour concluded that the petition would have been dismissed but for the exercise of the discretionary power in section 358(2) of the Electoral Act and ordered the petitioner Mr Sue to pay the costs of the respondentrsquos (Ms Hillrsquos) costs of the application even though the respondentrsquos application for dismissal of the petition was itself dismissed The petition was allowed to proceed on the terms that the petitioner was prevented from placing any further reliance on any allegations that fell within either the first or the third categories of disqualification in section 44(i) of the Constitution

439 On the same day in further directions Chief Justice Gleeson proposed that the Sue and the Sharples petitions should be managed separately at this stage Mr Sharples who was not represented had filed his petition in Brisbane and his petition was assigned to Justice Callinan to progress the matter in Brisbane

4310 Chief Justice Gleeson then stated his intention consistent with the wishes of the parties to refer the substantive questions arising under of the Sue petition to the Full Court of the High Court pursuant to section 18 of the Judiciary Act 1903 Assuming the power to state a case His Honour directed the parties to prepare a draft case stated for the consideration of the Full Court There was general agreement between the parties that the case stated would contain a number of questions but should at least include a question as to whether the petitioner had taken all ldquoreasonable stepsrdquo to renounce her citizenship of Great Britain according to the test provided in Sykes v Cleary and a question as to whether Great Britain is a ldquoforeign powerrdquo

4311 It was indicated that it was likely that the matter would be listed before the Full Court on 11 and 12 May 1999 in Canberra The proceedings would involve consideration of a Stated Case in the context of an Agreed Statement of Facts There was general agreement between the parties that the facts would be relatively few and the parties did not anticipate any disagreement as to the facts

4312 His Honour noted tentative agreement between the parties that if the petition were successful a recount would be the appropriate remedy and that the person placed second on the One Nation Partyrsquos group voting ticket would in all probability be the person who should be declared duly elected pursuant to section 360(1)(iv) of the Electoral Act His Honour suggested that that person Mr Len Harris would have to have an interest in the proceedings and might wish to be heard The matter was adjourned with costs in these preliminary proceedings

4313 On 29 March 1999 directions resumed before Chief Justice Gleeson and the draft Case Stated in the Sue petition was settled between the parties On 30 March 1999 His Honour signed the Case Stated with the following questions being referred to the Full Bench of the High Court

(a) Does s 354 of the Act validly confer upon the Court of Disputed Returns jurisdiction to determine the issues raised in the petition (b) Was the first respondent at the date of her nomination a subject or citizen of a foreign power within the meaning of s 44(i) of the Constitution (c) Was the first respondent duly elected at the election (d) If no to (c) was the election void absolutely (e) If no to (d) should the second respondent conduct a recount of the ballot papers cast for the election for the purposes of determining the candidate entitled to be elected to the place for which the first respondent was returned (f) Save for the otherwise dealt with by order who should pay the costs of the Stated Case and of the hearing of the Stated Case before the Full High Court

4314 On 1 April 1999 a directions hearing on the Sharples petition was held by Justice Callinan in Brisbane with Mr Sharples representing himself and Mr Templeton representing the respondent Ms Hill The AEC represented by Mr Maurice Swan of the Australian Government Solicitor was granted leave to enter an appearance as a party to the petition and the AEC thereby became the second respondent to the Sharples petition Justice Callinan indicated that he was inclined to follow the same course as set by Chief Justice Gleeson in the Sue petition and asked for an Agreed Statement of Facts and a draft Case Stated from the parties The matter was adjourned to 22 April 1999

4315 In negotiations between the parties on the preparation of the draft Statement of Facts and Case Stated the petitioner Mr Sharples expressed his substantial disagreement with the Statement of Facts in the Case Stated already concluded in the Sue petition proceedings despite the respondents (Ms Hill and the AEC) expressing the view that the Statement of Facts in the Case Stated in the Sharples petition proceedings should be the same (with the omission only of a paragraph that was peculiar to the Sue Case Stated)

4316 On 22 April in directions before Justice Callinan His Honour ruled on the various points of disagreement in the draft Statement of Facts in the Case Stated between the petitioner Mr Sharples and the two respondents Ms Hill and the AEC This resulted in the addition of the numbers of first preference votes ldquoabove the linerdquo and ldquobelow the linerdquo received by Ms Hill which Mr Sharples submitted would be pertinent to his argument for a Senate ldquoby-electionrdquo or fresh election However His Honour declined to make any changes to the questions in the Case Stated that were agreed in the Sue petition proceedings

4317 At the conclusion of the directions hearing Justice Callinan directed the parties to join in the preparation of a document to reflect the various amendments as ordered to the draft Statement of Facts in the Case Stated in the Sharples proceedings and directed that the amended document be submitted to him by 27 April for certification and referral to the Full Bench Costs in these preliminary proceedings were reserved

4318 Following these proceedings the petitioner Mr Sharples wrote various letters to the other parties expressing his dissatisfaction with the proceedings and filed an affidavit with the Court (which was not served on the other parties) complaining about the conduct of the other parties in negotiations In the event Justice Callinan certified the Case Stated and Statement of Facts in the Sharples petition proceedings and the matter was listed for hearing concurrently or consecutively with the Sue petition proceedings on 11-12 May

44 Substantive Proceedings in the Petitions

441 The hearing by the Full Bench of the High Court of the Case Stated in the Sue petition and the Case Stated in the Sharples petition took place on 11-12 May 1999 in Canberra and because of the number and length of submissions was extended on the second day for another day into 13 May

442 The first petitioner Mr Sue was represented by Mr Stephen Finch SC with Ms Elizabeth Collins The second petitioner Mr Sharples represented himself The first respondent to each petition Ms Heather Hill was represented by Mr Robert Ellicott QC and Mr David Rofe QC with Mr Anthony Tudehope The second respondent to each petition the AEC was represented by Mr Maurice Swan a barrister from the Australian Government Solicitor with considerable experience in disputed proportional representation elections The Attorney-General for the Commonwealth (Intervening) was represented by the Solicitor-General Mr David Bennett QC with Mr Nye Perram and Mr Christopher Ward

443 The first day of the hearing was occupied with the first question in the Case Stated ldquoDoes section 354 of the Act validly confer upon the Court of Disputed Returns jurisdiction to determine the issues raised in the petitionrdquo Counsel for the first respondent Ms Hill submitted that the purported conferral of power upon the Court under section 354 of the Electoral Act was invalid because it contravened the doctrine of separation of powers That is the determination of disputed elections and returns is ancillary to the legislative function of the Parliament and is not a judicial function

444 It was also submitted by Counsel for Ms Hill that even if the Court had jurisdiction to try the petition its powers did not extend to ruling upon whether the first respondent was incapable of being chosen by reason of section 44(i) of the Constitution That is when hearing a petition filed under Division 1 of Part XXII of the Electoral Act the Court is limited to consideration of alleged illegal practices per section 362 of the Act and Division 1 does not confer power on the Court to hear claims in a petition of constitutional disqualification

445 It was further submitted by Counsel for Ms Hill that the Courtrsquos power to consider whether a person was qualified to be a Member of Parliament arises only in Division 2 of Part XXII of the Electoral Act by means of a question referred to the Court by resolution of the relevant House of the Parliament This is why additional powers are conferred on the Court pursuant to section 379 of the Act Counsel for the first respondent relied on the judgment of Gaudron J in Hudson v Lee (1993) 115 ALR 343 where Her Honour held that section 362 of the Act was an ldquoexhaustive statementrdquo of the circumstances in which an election might be declared invalid or void in answer to a petition filed under Division 1 of Part XXII of the Act

446 In response Counsel for the petitioner Mr Sue and the Solicitor-General for the Commonwealth both submitted that the Court should not adopt such an unduly narrow reading of Part XXII of the Electoral Act The Solicitor-General submitted that the view expressed by Gaudron J in Hudson v Lee is limited to questions of misconduct and is authority only for the proposition that misconduct is not actionable unless it finds a source in section 362 of the Act The AEC made no submissions in relation to this first question in the Case Stated

447 The question whether the Court had jurisdiction to determine whether the first respondent Ms Hill was ldquoincapable of being chosenrdquo as a Senator by reason of section 44(i) of the Constitution inevitably drew the Court into the question whether it was sitting as the High Court of Australia and thus having the jurisdiction conferred on the High Court by the Constitution or whether it was sitting as a separate statutory Court namely the Court of Disputed Returns and thus having the jurisdiction conferred on it under Part XXII of the Electoral Act

448 The second question in the Case Stated ldquoWas the first respondent at the date of her nomination a subject or citizen of a foreign powerrdquo was dealt with in two parts whether the United Kingdom is a ldquoforeign powerrdquo for the purposes of section 44(i) of the Constitution and whether Ms Hill was a ldquosubject or citizenrdquo of the United Kingdom irrespective of whether the United Kingdom is a foreign power The AEC made no submissions in relation to this second question in the Case Stated

449 There was little disagreement between the parties concerned that when section 44(i) was enacted the framers of the Constitution did not envisage the phrase ldquoforeign powerrdquo to include the United Kingdom Indeed until 1948 and the passing of the Nationality and Citizenship Act 1948 citizenship of the United Kingdom was the norm for the majority of Australians

4410 Counsel for the first respondent Ms Hill submitted that as at 1900 the phrase ldquoforeign powerrdquo did not and was not intended to include the United Kingdom and that none of the events circumstances or legislative enactments since 1900 have converted the special and unique relationship between the Commonwealth of Australia and the United Kingdom into a relationship now between the Commonwealth and a ldquoforeign powerrdquo It was submitted that the relationship was like that between a parent and a child which forever binds the child to the parent

4411 In relation to whether Ms Hill was a ldquosubject or a citizenrdquo of the United Kingdom Counsel for Ms Hill endeavoured to distinguish the Courtrsquos decision in Sykes v Cleary (1992) 176 CLR 77 on the grounds that Ms Hill was at the time of her nomination an Australian citizen This it was submitted was enough to avoid the operation of section 44(i)

4412 In response Counsel for the petitioner Mr Sue and the Solicitor-General for the Commonwealth both submitted that the United Kingdom is a ldquoforeign powerrdquo for the purposes of section 44(i) of the Constitution Counsel for the petitioner further submitted that even if the United Kingdom was not a foreign power in 1900 and even if difficulties arise in identifying the exact point in time when it became a foreign power it can nevertheless be said with confidence that the emergence of Australia as an independent nation and the occurrence of various relevant events particularly the passage of the Australia Act 1986 mean that at least when Ms Hill was nominated for election the United Kingdom had truly become a ldquoforeign powerrdquo

4413 Finally Counsel for the petitioner Mr Sue and the Solicitor-General for the Commonwealth both submitted that at the date of her nomination Ms Hill held British citizenship and had not taken all reasonable (or any) steps to divest herself of that citizenship In particular she had not made the appropriate declaration of renunciation of that citizenship as per Sykes v Cleary That is if the United Kingdom is a ldquoforeign powerrdquo within the meaning of section 44(i) then Ms Hill was incapable of being chosen as a Senator

4414 In relation to the third question in the Case Stated ldquoWas the first respondent duly elected at the electionrdquo there was common ground between the parties that if the Court found that at the date of her nomination Ms Hill was incapable of being chosen as a Senator by reason of her being a subject or citizen of a foreign power then it must follow that the first respondent was not duly elected at the election

4415 In relation to the fourth question in the Case Stated ldquoIf the first respondent was not duly elected was the election absolutely voidrdquo the parties in Sue v Hill agreed with the submission by the Solicitor-General for the Commonwealth that this question should be answered in the negative that is the election should not be declared absolutely void and a recount would be the appropriate remedy However the second petitioner Mr Sharples submitted that the question should be answered in the positive and a ldquowhole new electionrdquo should be conducted

4416 In relation to the fifth question in the Case Stated ldquoIf the election should not be declared void absolutely should the second respondent conduct a recount of the ballot papers cast for the purpose of determining the candidate entitled to be declared electedrdquo Counsel for the AEC submitted that a recount of the ballot papers for the position of Ms Hill would be the most appropriate remedy per In re Wood (1988) 167 CLR 145 Counsel for the petitioner Mr Sue Counsel for the first respondent Ms Hill and the Solicitor-General for the Commonwealth agreed with the submissions of the AEC

4417 In response to questions from the Bench Counsel for the AEC further submitted that it was highly probable that a member of the same political party as Ms Hill would be elected in her place on a recount of the ballot papers That is a recount would probably elect Mr Len Harris of One Nation in place of Ms Hill of One Nation because around 99 of electors who voted 1 for Ms Hill voted 2 for Mr Harris the second candidate on the One Nation group voting ticket Nevertheless until the recount was actually conducted this remained an hypothetical proposition

4418 In opposition to the submissions of the AEC the second petitioner Mr Sharples submitted that the Court could not be absolutely confident that the votersrsquo original intentions would be reflected by a recount given the distribution of first preferences for Ms Hill above and below the line on the ballot papers He referred also to the fact that Ms Hill was elected third in a field of six whilst in the precedent case In re Wood Mr Wood was elected last in a field of twelve He submitted that a fresh election was therefore the most appropriate remedy The Court then ordered Counsel for the AEC to provide further written submissions on the different consequences that might flow from the different order in which Mr Wood was elected in 1988 and Ms Hill in 1998

4419 The further written submissions were filed by the AEC on 18 May 1999 and showed that in its amicus role the AEC had given early consideration as to whether the election of other candidates would be disturbed by a recount if Ms Hill were to be disqualified and had concluded that this was so unlikely that their involvement in the proceedings need not be suggested to the Court The AEC further submitted that the different order of election in the Wood and the Hill cases would not change the fact that Mr Harris of One Nation would most probably be elected on a recount to replace Ms Hill In the event Mr Sharples chose to file further written submissions in response to the further written submissions of the AEC in which he endeavoured to distinguish In re Wood and further argued the case for a fresh election

4420 The sixth and final question in the Case Stated was ldquoSave for those otherwise dealt with by order who should pay the costs of the Stated Case and of the hearing of the Stated Case before the Full High Courtrdquo Counsel for the petitioner Mr Sue submitted that if the petition was successful the first respondent Ms Hill should pay his costs Counsel for the first respondent Ms Hill submitted that the Commonwealth should pay her costs because the questions raised were ldquoof great contemporary importancerdquo Alternatively it was submitted that if the petition failed then her costs should be paid by the petitioner The AEC submitted that no costs order should be made against the AEC and sought no costs order against the other parties

4421 The Solicitor-General for the Commonwealth submitted that no costs order should be made against the Commonwealth (under section 360(4) of the Electoral Act) and sought no costs order against the other parties The submission that the Commonwealth should not pay the costs of the other parties was not well received by the Bench Justice Callinan called it ldquoan extraordinary submissionrdquo

4422 Justice Gaudron cavilled at the submission by the Solicitor-General on the grounds that ldquoone half of the argument at least is concerned with matters relating to the effect of the Act ndash perhaps more than one halfrdquo and went on to say that ldquodeficienciesrdquo in the Act ldquohave been drawn to the attention of the Commonwealth in litigation for many yearsrdquo yet ldquopeople have been content more or less to leave [the Act] as it is with little thought as to how it operatesrdquo (transcript 12 May 1999 pp 65-66)

4423 The Decision in the Petitions On 23 June 1999 the Full Bench of the High Court handed down its judgment in Sue v Hill (1999) 73 ALJR 1016 and Sharples v Hill (B49 of 1998 High Court 23 June 1999 unreported) (Attachment 2) The majority of the Court (Gleeson CJ Gaudron Gummow and Hayne JJ) answered the questions in the Case Stated as follows

(a) Does s 354 of the Act validly confer upon the Court of Disputed Returns jurisdiction to determine the issues raised in the petition

Answer Yes

(b) Was the first respondent at the date of her nomination a subject or citizen of a foreign power within the meaning of s 44(i) of the Constitution

Answer Yes

(c) Was the first respondent duly elected at the election

Answer No

(d) If no to (c) was the election void absolutely

Answer No

(e) If no to (d) should the second respondent conduct a recount of the ballot papers cast for the election for the purposes of determining the candidate entitled to be elected to the place for which the first respondent was returned

Answer Inappropriate to answer

(f) Save for the otherwise dealt with by order who should pay the costs of the Stated Case and of the hearing of the Stated Case before the Full High Court

Answer The Commonwealth should pay the costs of the petitioner and the first respondent The second respondent should bear its own costs

4424 In delivering the judgment of the Court in the Sue v Hill and the Sharples v Hill petitions Chief Justice Gleeson made the following summary

In these two cases which were commenced in the Court of Disputed Returns the election of Mrs Hill as a Senator for the State of Queensland was challenged on the ground that at the date of her nomination she was incapable of being chosen as a Senator The specific ground of disqualification alleged was related to section 44(i) of the Constitution and was that at the date of nomination Mrs Hill was a subject or citizen of a foreign power namely the United Kingdom

The members of the Court who constituted the Court of Disputed Returns in each case raised certain questions for the decision of the full High Court

The first question was whether the Court of Disputed Returns has the jurisdiction invoked by the respective petitioners that is to say jurisdiction under Division 1 of Part XXII of the Commonwealth Electoral Act 1918 to consider a challenge to an election based solely on the ground of disqualification under section 44 of the Constitution Four members of the Court (Gleeson CJ Gaudron Gummow and Hayne JJ) have answered that question in the affirmative holding that there is jurisdiction Three members of the Court (McHugh Kirby Callinan JJ) have answered the question in the negative holding that jurisdiction does not exist

The three members of the Court who held that there was no jurisdiction of the kind invoked did not for that reason go on to answer the remaining questions

The four members of the Court who held that there is jurisdiction dealt with the remaining questions as follows

(a) The United Kingdom is a foreign power within the meaning of section 44 of the Constitution (b) At the time of her nomination Mrs Hill was a subject or citizen of a foreign power and was therefore incapable of being chosen as a Senator (c) Mrs Hill was therefore not duly elected (d) The consequence is not that the entire election of Senators for Queensland was void absolutely

Those four members of the Court were of the opinion that there should be a recount

As to the manner and extent of such recount these are matters upon which persons who have not been represented in the proceedings might wish to have the opportunity of being heard Accordingly each case has been remitted to the Court of Disputed Returns In the case of Sue v Hill the Court will sit at 930 am tomorrow for the purpose of considering the future course of the proceedings and if necessary giving directions

It was ordered that the Commonwealth should pay the costs of the petitioners and Mrs Hill

4425 The conclusion by the Court that other persons involved in the Queensland Senate election should be heard on the manner and extent of a recount was in response to the submissions made by Mr Sharples that the result of a recount as hypothesised by the AEC (the election of Mr Len Harris of One Nation to replace Ms Hill) might not transpire and the election or nonshyelection of the other candidates might be disturbed At paragraph 179 of the decision Justice Gaudron expanded on the doubts about the outcome of a recount that were raised in the Court by Mr Sharplesrsquo submissions

Although nothing was put to suggest that the true intention of the voters cannot be ascertained by a recount it emerged at the hearing that there was a real question as to the manner in which the recount should be conducted As formulated question (e) posits that a recount should be conducted only for the third Senate position However it is possible that a recount of all votes might have consequences for the fourth fifth and sixth Senators Those persons were not represented at the hearing It may be that that was because having regard to the terms of question (e) they were of the view that their positions would not be affected by a recount In the circumstances the appropriate course is to answer question (e) in each of the cases stated ldquoInappropriate to answerrdquo leaving the issue to be determined by a single Justice after hearing such submission if any as the persons returned as the fourth fifth and sixth Senators wish to make

45 Later Proceedings in the Petitions

451 On 24 June 1999 Chief Justice Gleeson sat as the Court of Disputed Returns to further progress the issues about the manner and extent of a recount The petitioner Mr Sue was represented by Ms Collins the first respondent Ms Hill was represented by Mr Templeton the second respondent the AEC was represented by Mr Swan of AGS and Mr Burmester QC appeared for the Attorney-General for the Commonwealth (Intervening) In addition two other persons involved in the election appeared Senator-elect Mason was represented by Mr Shannon and Senator OrsquoChee was represented by Mr Saunders

452 His Honour indicated from the outset that the purpose of the hearing was to address the concerns detailed in paragraph 179 of Justice Gaudronrsquos judgment namely that everyone who had a possible interest in a recount be given an opportunity to be heard His Honour identified three categories of such persons First Mr Len Harris the second candidate on the One Nation group voting ticket second the candidates elected in the fourth fifth and sixth positions for the Queensland Senate and third any non-elected candidate who might possibly replace any of the candidates elected to the fourth fifth and sixth positions Counsel for the AEC identified Ms Jann Piasecki Mr Drew Hutton Senator OrsquoChee and Mr John Bradford as persons who might have an interest within the categories set by the Chief Justice

453 His Honour then directed that a letter be sent immediately by the AEC to Senator-elect Ludwig Senator Woodley Mr John Bradford Mr Len Harris Ms Jann Piasecki and Mr Drew Hutton drawing their attention to the petition and the decision of the Court advising the intention to conduct a recount and that they had the opportunity to address the Court on the manner and extent of that recount

454 The Court was advised by Counsel for the AEC that if a recount was ordered by the Court it would be done by computer as permitted by section 273A of the Electoral Act and could be done the following day in approximately 45 minutes subject to the availability of scrutineers for the interested parties

455 Towards the end of these proceedings Counsel for the first respondent Ms Hill indicated that on the finding by the Full Bench that Ms Hill was not duly elected his client no longer had any interest in the proceedings He was therefore granted leave to be excused from further appearance and was not present for the costs orders at the end of these proceedings

456 On 29 June 1999 proceedings resumed before Chief Justice Gleeson by reference to a Notice of Motion of 28 June 1999 filed by the AEC setting out proposed orders and attaching a schedule for the conduct of a recount as follows

(1) A vote indicated on a ballot paper opposite the name of Heather Hill be counted to the candidate next in the order of the voterrsquos preference and the numbers indicating subsequent preferences be treated as altered accordingly (2) The further counting and recounting be conducted subject to direction (1) as nearly as practicable in accordance with the relevant provisions of section 273A of the Commonwealth Electoral Act 1918 (ldquothe Actrdquo) as if there were 6 vacancies to be filled (3) The further counting and recounting identify which candidate is entitled to be elected to the third place left unfilled by the ineligibility of Heather Hill (4) The further counting and recounting identify which (if any) candidate or candidates other than Mr Ludwig Mr Mason or Senator Woodley is or are entitled to be elected in the place of Mr Ludwig Mr Mason or Senator Woodley to any of the fourth fifth or sixth places to be filled (5) Notwithstanding direction (1) any ballot paper ruled to be informal during the 1998 scrutiny be treated as informal in the further counting and recounting (6) Notwithstanding direction (1) any ballot paper ruled to be formal during the 1998 scrutiny be treated as formal in the further counting and recounting except where a ballot paper is marked with a first preference for Heather Hill followed by the marking of a second preference for each of 2 or more other candidates (7) Notwithstanding direction (1) any ballot paper showing the same preference for Heather Hill and one or more other continuing candidates be set aside as exhausted in accordance with subsection 273(26) at the point in the scrutiny at which it would have been set aside had Heather Hill been a candidate eligible for election (8) Ballot papers marked with group voting ticket votes not be counted again but that the group voting tickets figures ascertained in the 1998 scrutiny be adjusted in accordance with direction (1) for the purposes of the further counting and recounting

457 The petitioner Mr Sue was represented by Ms Tait the second respondent the AEC was represented by Mr Swan of AGS and the Attorney-General for the Commonwealth (Intervening) was represented by Mr Burmester QC A number of other parties sought leave to intervene Mr Harris the second candidate on the One Nation group voting ticket was represented by Mr Gageler Senator Woodley was represented by Mr Davey Senator-elect Mason was represented by Mr Wood and Senator OrsquoChee was represented by Mr Applegarth An affidavit of 29 June of Mr McCarthy for the AEC testified to the notification of these parties by the AEC as ordered at the previous proceedings

458 An affidavit of 28 June of Mr Spelman of the AEC which was read to the Court by Mr Swan for the AEC advised the appropriateness of a full recount computerised in accordance with section 273A of the Electoral Act and in accordance with the directions in the schedule attached to the proposed orders and the inappropriateness of a recount that did not take into account all formal votes cast in the election

459 A full recount as proposed by the AEC was supported by Senator Woodley Senator-elect Mason Senator OrsquoChee Mr Harris and the Attorney-General on the basis that the recount would resolve whether any questions arose about disturbing the election or non-election of other candidates and that the conduct of the recount would not pre-empt any submissions they might make regarding the form of any resultant orders His Honour then ordered the AEC to conduct a full recount according to the schedule and report back to the Court with the results Costs in these proceedings were reserved

4510 On 2 July 1999 proceedings resumed before Chief Justice Gleeson with the same appearances as for 29 July with the exception that (now) Senator Mason and (now) Mr OrsquoChee were represented by Mr Wood An affidavit of 30 June of Mr Spelman of the AEC which was read to the Court by Mr Swan for the AEC advised the outcome of the full recount which was that Mr Harris achieved a quota in place of Ms Hill and the other candidates elected were unchanged from those elected at the original election

4511 With respect to costs in these later proceedings Mr Swan for the AEC and Mr Burmester for the Attorney-General submitted that each party should bear their own costs The other parties present (with the first respondent Ms Hill now absent) submitted that the Commonwealth should pay their costs under section 360(4) of the Electoral Act

4512 His Honour formally granted leave to intervene to Mr OrsquoChee Senator Mason Senator Woodley and Mr Harris and then ordered

1 That Heather Hill was not duly elected at the election held on 3 October 1998 2 That Mr Len Harris be declared duly elected as a Senator for the State of Queensland in the place for which Heather Hill was returned 3 That the second respondent and the Attorney-General for the Commonwealth each bear their own costs 4 That the Commonwealth pay the costs of the petitioner Senator Woodley Senator Mason Mr OrsquoChee and Mr Harris and their costs on previous occasions which have been reserved 5 Certify for counsel

4513 Lastly His Honour noted that Mr Sharples was not present and directed that his petition be re-listed before Justice Callinan to make such orders as he thought appropriate having regard to proceedings in the Sue petition

4514 On 29 July 1999 proceedings in the Sharples petition resumed before Justice Callinan The petitioner Mr Sharples represented himself the first respondent Ms Hill did not appear the second respondent the AEC was represented by Mr Swan of AGS the Attorney-General (Intervening) did not appear and on the question of costs the Commonwealth was represented by Mr Belcher of AGS (instructed by the AEC)

4515 His Honour ordered that

1 The petition be dismissed 2 The second respondent bear its own costs 3 The Commonwealth pay the costs of the petitioner of todayrsquos proceedings and of previous occasions on which costs were reserved

4516 The outcome on costs for both petitions was that under section 360(4) of the Electoral Act the Commonwealth was ordered to pay the costs on a partyparty basis of all the parties (except the Attorney-General and the AEC) in the proceedings extending over a period of some six months and involving numerous counsel and senior counsel Whilst the public interest in these petitions was properly served in all proceedings the award of costs against the Commonwealth will amount to a substantial cost to the public purse

4517 The AEC has now been advised by the Constitutional Unit of the Australian Government Solicitor and the Department of Finance and Administration that the costs awarded against the Commonwealth are the responsibility of the AEC There is no suggestion that the AEC was at fault in the conduct of the election or proceedings on the petitions

5 Implications of the Sue and Sharples Decisions

51 Jurisdiction of the Court of Disputed Returns

511 The majority judgment of the High Court (Gleeson CJ Gaudron Gummow and Hayne JJ) in the SueSharples petitions held that section 354 of the Electoral Act validly conferred jurisdiction upon the Court of Disputed Returns to determine the constitutional question raised in the petitions namely whether Ms Heather Hill was disqualified from being elected under section 44(i) of the Constitution

512 That is it has been concluded that the Court of Disputed Returns has jurisdiction to hear petitions raising questions of constitutional disqualifications filed under Division 1 of Part XXII of the Electoral Act The corollary is that the jurisdiction of the Court of Disputed Returns to hear questions of constitutional qualifications is not limited to matters referred to the Court by the Parliament under Division 2 of Part XXII the Electoral Act

513 The jurisdictional decision in the SueSharples petitions is in accordance with the conduct of proceedings in 1992 in Sykes v Cleary (1992) 176 CLR 77 which was initiated by way of a petition filed by Mr Ian Sykes under Division 1 of Part XXII of the Electoral Act The Sykes v Cleary decision resulted in the disqualification of Mr Phil Cleary under section 44(iv) of the Constitution for holding an office of profit under the Crown at the time of his nomination and a finding that other candidates in the by-election for the Division of Wills Mr Kardamitisis (ALP) and Mr Delacretaz (Liberal Party) were disqualified under section 44(i) of the Constitution for holding dual citizenship with Greece and Switzerland respectively

514 The jurisdictional decision in the SueSharples petitions is also in accordance with the conduct of proceedings in 1996 in Free v Kelly (1996) 70 ALJR 809 which was initiated by way of a petition filed by Mr Ross Free under Division 1 of Part XXII of the Electoral Act The Free v Kelly decision resulted in the disqualification of Ms Jackie Kelly under section 44(iv) of the Constitution for holding an office of profit under the Crown at the time of her nomination

515 The history of the separation of powers between the Parliament and the Judiciary in relation to such matters begins with the commencement of the Commonwealth in 1901 when section 47 of the Constitution prevailed

Until the Parliament otherwise provides any question respecting the qualifications of a senator or of a member of the House of Representatives or respecting a vacancy in either House of the Parliament and any question of a disputed election to either House shall be determined by the House in which the question arises

516 The Parliament then otherwise provided in sections 192-206 of the Commonwealth Electoral Act 1902 to the effect that the validity of any disputed election or return was to be decided by the High Court sitting as the Court of Disputed Returns

517 Further in section 6 of the Commonwealth Electoral Act 1907 the Parliament provided that any question on the qualifications of Members of Parliament or on a vacancy in the Parliament could be referred to the Court by resolution of the House of the Parliament in which the question arose In 1918 these two Acts were consolidated into the Commonwealth Electoral Act 1918 and now appear as Divisions 1 and 2 of Part XXII of the Electoral Act

518 The most recent example of the referral by the Parliament of a question concerning the qualifications of a Member of Parliament is the case of Senator Robert Wood in 1988 when the Senate referred the question of his qualifications by way of Division 2 of Part XXII of the Electoral Act to the Court of Disputed Returns Senator Wood was subsequently found to be disqualified by section 163 of the Electoral Act because he was not an Australian citizen

519 During the course of the 1999 proceedings in the SueSharples petitions the matter of Mr Warren Entsch MP and his alleged disqualification under section 44(v) of the Constitution was raised in the Parliament On 10 June 1999 the Leader of the Opposition moved in the House of Representatives

That the following question be referred to the Court of Disputed Returns for determination pursuant to section 376 of the Commonwealth Electoral Act 1918 Whether the place of the honourable Member for Leichhardt (Mr Entsch) has become vacant pursuant to the provisions of section 44(v) of the Constitution

5110 In response the Attorney-General moved in the House of Representatives that the motion be amended to read as follows

That the House determines that the member for Leichhardt does not have any direct or indirect pecuniary interest with the Public Service of the Commonwealth within the meaning of section 44(v) of the Constitution by reason of any contract entered into by Cape York Concrete Pty Ltd since 3 October 1998 and the member for Leichhardt is therefore not incapable of sitting as a member of this House

5111 The amendment moved by the Attorney-General was resolved in the affirmative That is in the Entsch matter the House of Representatives resolved not to refer the question of the constitutional qualifications of the Member for Leichhardt to the Court of Disputed Returns for consideration but instead resolved itself that he was not so disqualified This action asserted the right of the Parliament to make determinations on the constitutional qualifications of its own members without the involvement of the Judiciary

5112 It could be suggested that such determinations about constitutional qualifications made on the numbers in the relevant House of the Parliament might not be entirely disinterested at a political level And it might appear that anyone other than a Member of Parliament who wishes to challenge the constitutional qualifications of a sitting Member is foreclosed from doing so by the time limitation in section 355(e) of the Electoral Act which provides that a petition must be filed with the High Court within 40 days of the return of the writ for the relevant election

5113 However in those circumstances where the elected Parliament has already formed and the petition filing period has passed the Common Informers (Parliamentary Disqualifications) Act 1975 enables any person to sue the High Court for the payment of $200 per day for the period during which a Member of Parliament sits while being disqualified after being served with the originating process and the sum of $200 only in respect of a past breach The Act restricts such suits to a period no earlier than 12 months before the day on which the suit is instituted In relation to the Entsch matter this would mean that for any common informers action to be instituted Mr Entsch must have been disqualified as alleged within the 12 months preceding the date on which the suit was filed

5114 The most significant issues arising from the related matters discussed above would appear to be twofold

(a) whether the Electoral Act should continue to provide that the constitutional qualifications of Members of Parliament can be disputed by way of petition from any elector or candidate to the Court of Disputed Returns within 40 day days of the return of the writ for the election

(b) whether in the absence of either a referral to the Court of Disputed Returns by the House affected or a petition to the Court within 40 days of the return of the writ for the election or a common informerrsquos suit the Parliament should retain its authority to decide on the constitutional qualifications of its own members

5115 These issues arise out of the dispute resolution scheme provided for in the Electoral Act by the Parliament in the early part of this century and have not before been given direct consideration by the JSCEM since the major amendments to the Electoral Act in 1983 However given that these questions also go to the separation of powers between the Parliament and Judiciary and may therefore require considered submissions from all interested parties the AEC makes the following recommendation

Recommendation 1 That the JSCEM seek a reference to inquire into the powers and functions of the Australian Electoral Commission as expressed in Part II of the Electoral Act and Part I of the Referendum Act and the powers and functions of the Court of Disputed Returns as expressed in Part XXII of the Electoral Act and in Part VIII of the Referendum Act

5116 The recommendation includes reference to the powers and functions of the AEC in the context of the issues raised in part 53 below

52 Constitutional Disqualifications

521 The decision of the High Court in the SueSharples petitions was that any candidate who is a subject or citizen of a foreign power such as the United Kingdom is disqualified at the time of nomination from election to the Parliament That is Ms Heather Hill was disqualified from being elected under section 44(i) of the Constitution

522 This decision was made by the majority members of the Court (Gleeson CJ Gaudron Gummow and Hayne JJ) after they had decided that the Court of Disputed Returns had jurisdiction to hear the petition The other members of the Court (McHugh Kirby and Callinan JJ) who decided that the Court of Disputed Returns had no jurisdiction to hear the petition were not required to form a view on the constitutional qualifications question

523 This decision of the High Court on the interpretation of section 44(i) of the Constitution represents a highly significant statement about the constitutional relationship between the United Kingdom and Australia and in particular makes it very clear that persons holding dual citizenship with the United Kingdom are as equally subject to the constitutional disqualification as persons holding dual citizenship with any other foreign power

524 This may not have been clearly apparent from Sykes v Cleary in 1992 for example where after finding that Mr Phil Cleary was disqualified under section 44(iv) of the Constitution the Court went on to apply section 44(i) of the Constitution to two other candidates Mr Kardamitsis (ALP) and Mr Delacretaz (Liberal Party) who held dual citizenship with Greece and Switzerland respectively and found that they would have also been disqualified Although the Court indicated that all ldquoreasonable stepsrdquo should be taken by candidates to divest themselves of dual citizenship a doubt may have remained after this case as to whether this rule applied equally to British subjects The judgment in the SueSharples petitions should now remove any such doubts

525 However in its publications provided to intending candidates since the 1992 Sykes v Cleary decision the AEC did not find it necessary to make any such distinctions between the United Kingdom and other foreign powers in warning intending candidates to take reasonable steps to divest themselves of dual citizenship before nomination

526 For example on 17 July 1999 some three months before the 1998 federal election the AEC published Electoral Backgrounder No 4 entitled ldquoCandidate Disqualifications Section 44 of the Constitutionrdquo which provided a detailed discussion of the constitutional disqualifications for candidates at federal elections The AEC included information on how British subjects could divest themselves of dual citizenship in paragraph 27 This Backgrounder was made available to the public in hard copy from all AEC offices on the AEC Internet site (wwwaecgovau) and was provided to all candidates as part of the AEC ldquoCandidates Information Kitrdquo

4312 His Honour noted tentative agreement between the parties that if the petition were successful a recount would be the appropriate remedy and that the person placed second on the One Nation Partyrsquos group voting ticket would in all probability be the person who should be declared duly elected pursuant to section 360(1)(iv) of the Electoral Act His Honour suggested that that person Mr Len Harris would have to have an interest in the proceedings and might wish to be heard The matter was adjourned with costs in these preliminary proceedings

4313 On 29 March 1999 directions resumed before Chief Justice Gleeson and the draft Case Stated in the Sue petition was settled between the parties On 30 March 1999 His Honour signed the Case Stated with the following questions being referred to the Full Bench of the High Court

(a) Does s 354 of the Act validly confer upon the Court of Disputed Returns jurisdiction to determine the issues raised in the petition (b) Was the first respondent at the date of her nomination a subject or citizen of a foreign power within the meaning of s 44(i) of the Constitution (c) Was the first respondent duly elected at the election (d) If no to (c) was the election void absolutely (e) If no to (d) should the second respondent conduct a recount of the ballot papers cast for the election for the purposes of determining the candidate entitled to be elected to the place for which the first respondent was returned (f) Save for the otherwise dealt with by order who should pay the costs of the Stated Case and of the hearing of the Stated Case before the Full High Court

4314 On 1 April 1999 a directions hearing on the Sharples petition was held by Justice Callinan in Brisbane with Mr Sharples representing himself and Mr Templeton representing the respondent Ms Hill The AEC represented by Mr Maurice Swan of the Australian Government Solicitor was granted leave to enter an appearance as a party to the petition and the AEC thereby became the second respondent to the Sharples petition Justice Callinan indicated that he was inclined to follow the same course as set by Chief Justice Gleeson in the Sue petition and asked for an Agreed Statement of Facts and a draft Case Stated from the parties The matter was adjourned to 22 April 1999

4315 In negotiations between the parties on the preparation of the draft Statement of Facts and Case Stated the petitioner Mr Sharples expressed his substantial disagreement with the Statement of Facts in the Case Stated already concluded in the Sue petition proceedings despite the respondents (Ms Hill and the AEC) expressing the view that the Statement of Facts in the Case Stated in the Sharples petition proceedings should be the same (with the omission only of a paragraph that was peculiar to the Sue Case Stated)

4316 On 22 April in directions before Justice Callinan His Honour ruled on the various points of disagreement in the draft Statement of Facts in the Case Stated between the petitioner Mr Sharples and the two respondents Ms Hill and the AEC This resulted in the addition of the numbers of first preference votes ldquoabove the linerdquo and ldquobelow the linerdquo received by Ms Hill which Mr Sharples submitted would be pertinent to his argument for a Senate ldquoby-electionrdquo or fresh election However His Honour declined to make any changes to the questions in the Case Stated that were agreed in the Sue petition proceedings

4317 At the conclusion of the directions hearing Justice Callinan directed the parties to join in the preparation of a document to reflect the various amendments as ordered to the draft Statement of Facts in the Case Stated in the Sharples proceedings and directed that the amended document be submitted to him by 27 April for certification and referral to the Full Bench Costs in these preliminary proceedings were reserved

4318 Following these proceedings the petitioner Mr Sharples wrote various letters to the other parties expressing his dissatisfaction with the proceedings and filed an affidavit with the Court (which was not served on the other parties) complaining about the conduct of the other parties in negotiations In the event Justice Callinan certified the Case Stated and Statement of Facts in the Sharples petition proceedings and the matter was listed for hearing concurrently or consecutively with the Sue petition proceedings on 11-12 May

44 Substantive Proceedings in the Petitions

441 The hearing by the Full Bench of the High Court of the Case Stated in the Sue petition and the Case Stated in the Sharples petition took place on 11-12 May 1999 in Canberra and because of the number and length of submissions was extended on the second day for another day into 13 May

442 The first petitioner Mr Sue was represented by Mr Stephen Finch SC with Ms Elizabeth Collins The second petitioner Mr Sharples represented himself The first respondent to each petition Ms Heather Hill was represented by Mr Robert Ellicott QC and Mr David Rofe QC with Mr Anthony Tudehope The second respondent to each petition the AEC was represented by Mr Maurice Swan a barrister from the Australian Government Solicitor with considerable experience in disputed proportional representation elections The Attorney-General for the Commonwealth (Intervening) was represented by the Solicitor-General Mr David Bennett QC with Mr Nye Perram and Mr Christopher Ward

443 The first day of the hearing was occupied with the first question in the Case Stated ldquoDoes section 354 of the Act validly confer upon the Court of Disputed Returns jurisdiction to determine the issues raised in the petitionrdquo Counsel for the first respondent Ms Hill submitted that the purported conferral of power upon the Court under section 354 of the Electoral Act was invalid because it contravened the doctrine of separation of powers That is the determination of disputed elections and returns is ancillary to the legislative function of the Parliament and is not a judicial function

444 It was also submitted by Counsel for Ms Hill that even if the Court had jurisdiction to try the petition its powers did not extend to ruling upon whether the first respondent was incapable of being chosen by reason of section 44(i) of the Constitution That is when hearing a petition filed under Division 1 of Part XXII of the Electoral Act the Court is limited to consideration of alleged illegal practices per section 362 of the Act and Division 1 does not confer power on the Court to hear claims in a petition of constitutional disqualification

445 It was further submitted by Counsel for Ms Hill that the Courtrsquos power to consider whether a person was qualified to be a Member of Parliament arises only in Division 2 of Part XXII of the Electoral Act by means of a question referred to the Court by resolution of the relevant House of the Parliament This is why additional powers are conferred on the Court pursuant to section 379 of the Act Counsel for the first respondent relied on the judgment of Gaudron J in Hudson v Lee (1993) 115 ALR 343 where Her Honour held that section 362 of the Act was an ldquoexhaustive statementrdquo of the circumstances in which an election might be declared invalid or void in answer to a petition filed under Division 1 of Part XXII of the Act

446 In response Counsel for the petitioner Mr Sue and the Solicitor-General for the Commonwealth both submitted that the Court should not adopt such an unduly narrow reading of Part XXII of the Electoral Act The Solicitor-General submitted that the view expressed by Gaudron J in Hudson v Lee is limited to questions of misconduct and is authority only for the proposition that misconduct is not actionable unless it finds a source in section 362 of the Act The AEC made no submissions in relation to this first question in the Case Stated

447 The question whether the Court had jurisdiction to determine whether the first respondent Ms Hill was ldquoincapable of being chosenrdquo as a Senator by reason of section 44(i) of the Constitution inevitably drew the Court into the question whether it was sitting as the High Court of Australia and thus having the jurisdiction conferred on the High Court by the Constitution or whether it was sitting as a separate statutory Court namely the Court of Disputed Returns and thus having the jurisdiction conferred on it under Part XXII of the Electoral Act

448 The second question in the Case Stated ldquoWas the first respondent at the date of her nomination a subject or citizen of a foreign powerrdquo was dealt with in two parts whether the United Kingdom is a ldquoforeign powerrdquo for the purposes of section 44(i) of the Constitution and whether Ms Hill was a ldquosubject or citizenrdquo of the United Kingdom irrespective of whether the United Kingdom is a foreign power The AEC made no submissions in relation to this second question in the Case Stated

449 There was little disagreement between the parties concerned that when section 44(i) was enacted the framers of the Constitution did not envisage the phrase ldquoforeign powerrdquo to include the United Kingdom Indeed until 1948 and the passing of the Nationality and Citizenship Act 1948 citizenship of the United Kingdom was the norm for the majority of Australians

4410 Counsel for the first respondent Ms Hill submitted that as at 1900 the phrase ldquoforeign powerrdquo did not and was not intended to include the United Kingdom and that none of the events circumstances or legislative enactments since 1900 have converted the special and unique relationship between the Commonwealth of Australia and the United Kingdom into a relationship now between the Commonwealth and a ldquoforeign powerrdquo It was submitted that the relationship was like that between a parent and a child which forever binds the child to the parent

4411 In relation to whether Ms Hill was a ldquosubject or a citizenrdquo of the United Kingdom Counsel for Ms Hill endeavoured to distinguish the Courtrsquos decision in Sykes v Cleary (1992) 176 CLR 77 on the grounds that Ms Hill was at the time of her nomination an Australian citizen This it was submitted was enough to avoid the operation of section 44(i)

4412 In response Counsel for the petitioner Mr Sue and the Solicitor-General for the Commonwealth both submitted that the United Kingdom is a ldquoforeign powerrdquo for the purposes of section 44(i) of the Constitution Counsel for the petitioner further submitted that even if the United Kingdom was not a foreign power in 1900 and even if difficulties arise in identifying the exact point in time when it became a foreign power it can nevertheless be said with confidence that the emergence of Australia as an independent nation and the occurrence of various relevant events particularly the passage of the Australia Act 1986 mean that at least when Ms Hill was nominated for election the United Kingdom had truly become a ldquoforeign powerrdquo

4413 Finally Counsel for the petitioner Mr Sue and the Solicitor-General for the Commonwealth both submitted that at the date of her nomination Ms Hill held British citizenship and had not taken all reasonable (or any) steps to divest herself of that citizenship In particular she had not made the appropriate declaration of renunciation of that citizenship as per Sykes v Cleary That is if the United Kingdom is a ldquoforeign powerrdquo within the meaning of section 44(i) then Ms Hill was incapable of being chosen as a Senator

4414 In relation to the third question in the Case Stated ldquoWas the first respondent duly elected at the electionrdquo there was common ground between the parties that if the Court found that at the date of her nomination Ms Hill was incapable of being chosen as a Senator by reason of her being a subject or citizen of a foreign power then it must follow that the first respondent was not duly elected at the election

4415 In relation to the fourth question in the Case Stated ldquoIf the first respondent was not duly elected was the election absolutely voidrdquo the parties in Sue v Hill agreed with the submission by the Solicitor-General for the Commonwealth that this question should be answered in the negative that is the election should not be declared absolutely void and a recount would be the appropriate remedy However the second petitioner Mr Sharples submitted that the question should be answered in the positive and a ldquowhole new electionrdquo should be conducted

4416 In relation to the fifth question in the Case Stated ldquoIf the election should not be declared void absolutely should the second respondent conduct a recount of the ballot papers cast for the purpose of determining the candidate entitled to be declared electedrdquo Counsel for the AEC submitted that a recount of the ballot papers for the position of Ms Hill would be the most appropriate remedy per In re Wood (1988) 167 CLR 145 Counsel for the petitioner Mr Sue Counsel for the first respondent Ms Hill and the Solicitor-General for the Commonwealth agreed with the submissions of the AEC

4417 In response to questions from the Bench Counsel for the AEC further submitted that it was highly probable that a member of the same political party as Ms Hill would be elected in her place on a recount of the ballot papers That is a recount would probably elect Mr Len Harris of One Nation in place of Ms Hill of One Nation because around 99 of electors who voted 1 for Ms Hill voted 2 for Mr Harris the second candidate on the One Nation group voting ticket Nevertheless until the recount was actually conducted this remained an hypothetical proposition

4418 In opposition to the submissions of the AEC the second petitioner Mr Sharples submitted that the Court could not be absolutely confident that the votersrsquo original intentions would be reflected by a recount given the distribution of first preferences for Ms Hill above and below the line on the ballot papers He referred also to the fact that Ms Hill was elected third in a field of six whilst in the precedent case In re Wood Mr Wood was elected last in a field of twelve He submitted that a fresh election was therefore the most appropriate remedy The Court then ordered Counsel for the AEC to provide further written submissions on the different consequences that might flow from the different order in which Mr Wood was elected in 1988 and Ms Hill in 1998

4419 The further written submissions were filed by the AEC on 18 May 1999 and showed that in its amicus role the AEC had given early consideration as to whether the election of other candidates would be disturbed by a recount if Ms Hill were to be disqualified and had concluded that this was so unlikely that their involvement in the proceedings need not be suggested to the Court The AEC further submitted that the different order of election in the Wood and the Hill cases would not change the fact that Mr Harris of One Nation would most probably be elected on a recount to replace Ms Hill In the event Mr Sharples chose to file further written submissions in response to the further written submissions of the AEC in which he endeavoured to distinguish In re Wood and further argued the case for a fresh election

4420 The sixth and final question in the Case Stated was ldquoSave for those otherwise dealt with by order who should pay the costs of the Stated Case and of the hearing of the Stated Case before the Full High Courtrdquo Counsel for the petitioner Mr Sue submitted that if the petition was successful the first respondent Ms Hill should pay his costs Counsel for the first respondent Ms Hill submitted that the Commonwealth should pay her costs because the questions raised were ldquoof great contemporary importancerdquo Alternatively it was submitted that if the petition failed then her costs should be paid by the petitioner The AEC submitted that no costs order should be made against the AEC and sought no costs order against the other parties

4421 The Solicitor-General for the Commonwealth submitted that no costs order should be made against the Commonwealth (under section 360(4) of the Electoral Act) and sought no costs order against the other parties The submission that the Commonwealth should not pay the costs of the other parties was not well received by the Bench Justice Callinan called it ldquoan extraordinary submissionrdquo

4422 Justice Gaudron cavilled at the submission by the Solicitor-General on the grounds that ldquoone half of the argument at least is concerned with matters relating to the effect of the Act ndash perhaps more than one halfrdquo and went on to say that ldquodeficienciesrdquo in the Act ldquohave been drawn to the attention of the Commonwealth in litigation for many yearsrdquo yet ldquopeople have been content more or less to leave [the Act] as it is with little thought as to how it operatesrdquo (transcript 12 May 1999 pp 65-66)

4423 The Decision in the Petitions On 23 June 1999 the Full Bench of the High Court handed down its judgment in Sue v Hill (1999) 73 ALJR 1016 and Sharples v Hill (B49 of 1998 High Court 23 June 1999 unreported) (Attachment 2) The majority of the Court (Gleeson CJ Gaudron Gummow and Hayne JJ) answered the questions in the Case Stated as follows

(a) Does s 354 of the Act validly confer upon the Court of Disputed Returns jurisdiction to determine the issues raised in the petition

Answer Yes

(b) Was the first respondent at the date of her nomination a subject or citizen of a foreign power within the meaning of s 44(i) of the Constitution

Answer Yes

(c) Was the first respondent duly elected at the election

Answer No

(d) If no to (c) was the election void absolutely

Answer No

(e) If no to (d) should the second respondent conduct a recount of the ballot papers cast for the election for the purposes of determining the candidate entitled to be elected to the place for which the first respondent was returned

Answer Inappropriate to answer

(f) Save for the otherwise dealt with by order who should pay the costs of the Stated Case and of the hearing of the Stated Case before the Full High Court

Answer The Commonwealth should pay the costs of the petitioner and the first respondent The second respondent should bear its own costs

4424 In delivering the judgment of the Court in the Sue v Hill and the Sharples v Hill petitions Chief Justice Gleeson made the following summary

In these two cases which were commenced in the Court of Disputed Returns the election of Mrs Hill as a Senator for the State of Queensland was challenged on the ground that at the date of her nomination she was incapable of being chosen as a Senator The specific ground of disqualification alleged was related to section 44(i) of the Constitution and was that at the date of nomination Mrs Hill was a subject or citizen of a foreign power namely the United Kingdom

The members of the Court who constituted the Court of Disputed Returns in each case raised certain questions for the decision of the full High Court

The first question was whether the Court of Disputed Returns has the jurisdiction invoked by the respective petitioners that is to say jurisdiction under Division 1 of Part XXII of the Commonwealth Electoral Act 1918 to consider a challenge to an election based solely on the ground of disqualification under section 44 of the Constitution Four members of the Court (Gleeson CJ Gaudron Gummow and Hayne JJ) have answered that question in the affirmative holding that there is jurisdiction Three members of the Court (McHugh Kirby Callinan JJ) have answered the question in the negative holding that jurisdiction does not exist

The three members of the Court who held that there was no jurisdiction of the kind invoked did not for that reason go on to answer the remaining questions

The four members of the Court who held that there is jurisdiction dealt with the remaining questions as follows

(a) The United Kingdom is a foreign power within the meaning of section 44 of the Constitution (b) At the time of her nomination Mrs Hill was a subject or citizen of a foreign power and was therefore incapable of being chosen as a Senator (c) Mrs Hill was therefore not duly elected (d) The consequence is not that the entire election of Senators for Queensland was void absolutely

Those four members of the Court were of the opinion that there should be a recount

As to the manner and extent of such recount these are matters upon which persons who have not been represented in the proceedings might wish to have the opportunity of being heard Accordingly each case has been remitted to the Court of Disputed Returns In the case of Sue v Hill the Court will sit at 930 am tomorrow for the purpose of considering the future course of the proceedings and if necessary giving directions

It was ordered that the Commonwealth should pay the costs of the petitioners and Mrs Hill

4425 The conclusion by the Court that other persons involved in the Queensland Senate election should be heard on the manner and extent of a recount was in response to the submissions made by Mr Sharples that the result of a recount as hypothesised by the AEC (the election of Mr Len Harris of One Nation to replace Ms Hill) might not transpire and the election or nonshyelection of the other candidates might be disturbed At paragraph 179 of the decision Justice Gaudron expanded on the doubts about the outcome of a recount that were raised in the Court by Mr Sharplesrsquo submissions

Although nothing was put to suggest that the true intention of the voters cannot be ascertained by a recount it emerged at the hearing that there was a real question as to the manner in which the recount should be conducted As formulated question (e) posits that a recount should be conducted only for the third Senate position However it is possible that a recount of all votes might have consequences for the fourth fifth and sixth Senators Those persons were not represented at the hearing It may be that that was because having regard to the terms of question (e) they were of the view that their positions would not be affected by a recount In the circumstances the appropriate course is to answer question (e) in each of the cases stated ldquoInappropriate to answerrdquo leaving the issue to be determined by a single Justice after hearing such submission if any as the persons returned as the fourth fifth and sixth Senators wish to make

45 Later Proceedings in the Petitions

451 On 24 June 1999 Chief Justice Gleeson sat as the Court of Disputed Returns to further progress the issues about the manner and extent of a recount The petitioner Mr Sue was represented by Ms Collins the first respondent Ms Hill was represented by Mr Templeton the second respondent the AEC was represented by Mr Swan of AGS and Mr Burmester QC appeared for the Attorney-General for the Commonwealth (Intervening) In addition two other persons involved in the election appeared Senator-elect Mason was represented by Mr Shannon and Senator OrsquoChee was represented by Mr Saunders

452 His Honour indicated from the outset that the purpose of the hearing was to address the concerns detailed in paragraph 179 of Justice Gaudronrsquos judgment namely that everyone who had a possible interest in a recount be given an opportunity to be heard His Honour identified three categories of such persons First Mr Len Harris the second candidate on the One Nation group voting ticket second the candidates elected in the fourth fifth and sixth positions for the Queensland Senate and third any non-elected candidate who might possibly replace any of the candidates elected to the fourth fifth and sixth positions Counsel for the AEC identified Ms Jann Piasecki Mr Drew Hutton Senator OrsquoChee and Mr John Bradford as persons who might have an interest within the categories set by the Chief Justice

453 His Honour then directed that a letter be sent immediately by the AEC to Senator-elect Ludwig Senator Woodley Mr John Bradford Mr Len Harris Ms Jann Piasecki and Mr Drew Hutton drawing their attention to the petition and the decision of the Court advising the intention to conduct a recount and that they had the opportunity to address the Court on the manner and extent of that recount

454 The Court was advised by Counsel for the AEC that if a recount was ordered by the Court it would be done by computer as permitted by section 273A of the Electoral Act and could be done the following day in approximately 45 minutes subject to the availability of scrutineers for the interested parties

455 Towards the end of these proceedings Counsel for the first respondent Ms Hill indicated that on the finding by the Full Bench that Ms Hill was not duly elected his client no longer had any interest in the proceedings He was therefore granted leave to be excused from further appearance and was not present for the costs orders at the end of these proceedings

456 On 29 June 1999 proceedings resumed before Chief Justice Gleeson by reference to a Notice of Motion of 28 June 1999 filed by the AEC setting out proposed orders and attaching a schedule for the conduct of a recount as follows

(1) A vote indicated on a ballot paper opposite the name of Heather Hill be counted to the candidate next in the order of the voterrsquos preference and the numbers indicating subsequent preferences be treated as altered accordingly (2) The further counting and recounting be conducted subject to direction (1) as nearly as practicable in accordance with the relevant provisions of section 273A of the Commonwealth Electoral Act 1918 (ldquothe Actrdquo) as if there were 6 vacancies to be filled (3) The further counting and recounting identify which candidate is entitled to be elected to the third place left unfilled by the ineligibility of Heather Hill (4) The further counting and recounting identify which (if any) candidate or candidates other than Mr Ludwig Mr Mason or Senator Woodley is or are entitled to be elected in the place of Mr Ludwig Mr Mason or Senator Woodley to any of the fourth fifth or sixth places to be filled (5) Notwithstanding direction (1) any ballot paper ruled to be informal during the 1998 scrutiny be treated as informal in the further counting and recounting (6) Notwithstanding direction (1) any ballot paper ruled to be formal during the 1998 scrutiny be treated as formal in the further counting and recounting except where a ballot paper is marked with a first preference for Heather Hill followed by the marking of a second preference for each of 2 or more other candidates (7) Notwithstanding direction (1) any ballot paper showing the same preference for Heather Hill and one or more other continuing candidates be set aside as exhausted in accordance with subsection 273(26) at the point in the scrutiny at which it would have been set aside had Heather Hill been a candidate eligible for election (8) Ballot papers marked with group voting ticket votes not be counted again but that the group voting tickets figures ascertained in the 1998 scrutiny be adjusted in accordance with direction (1) for the purposes of the further counting and recounting

457 The petitioner Mr Sue was represented by Ms Tait the second respondent the AEC was represented by Mr Swan of AGS and the Attorney-General for the Commonwealth (Intervening) was represented by Mr Burmester QC A number of other parties sought leave to intervene Mr Harris the second candidate on the One Nation group voting ticket was represented by Mr Gageler Senator Woodley was represented by Mr Davey Senator-elect Mason was represented by Mr Wood and Senator OrsquoChee was represented by Mr Applegarth An affidavit of 29 June of Mr McCarthy for the AEC testified to the notification of these parties by the AEC as ordered at the previous proceedings

458 An affidavit of 28 June of Mr Spelman of the AEC which was read to the Court by Mr Swan for the AEC advised the appropriateness of a full recount computerised in accordance with section 273A of the Electoral Act and in accordance with the directions in the schedule attached to the proposed orders and the inappropriateness of a recount that did not take into account all formal votes cast in the election

459 A full recount as proposed by the AEC was supported by Senator Woodley Senator-elect Mason Senator OrsquoChee Mr Harris and the Attorney-General on the basis that the recount would resolve whether any questions arose about disturbing the election or non-election of other candidates and that the conduct of the recount would not pre-empt any submissions they might make regarding the form of any resultant orders His Honour then ordered the AEC to conduct a full recount according to the schedule and report back to the Court with the results Costs in these proceedings were reserved

4510 On 2 July 1999 proceedings resumed before Chief Justice Gleeson with the same appearances as for 29 July with the exception that (now) Senator Mason and (now) Mr OrsquoChee were represented by Mr Wood An affidavit of 30 June of Mr Spelman of the AEC which was read to the Court by Mr Swan for the AEC advised the outcome of the full recount which was that Mr Harris achieved a quota in place of Ms Hill and the other candidates elected were unchanged from those elected at the original election

4511 With respect to costs in these later proceedings Mr Swan for the AEC and Mr Burmester for the Attorney-General submitted that each party should bear their own costs The other parties present (with the first respondent Ms Hill now absent) submitted that the Commonwealth should pay their costs under section 360(4) of the Electoral Act

4512 His Honour formally granted leave to intervene to Mr OrsquoChee Senator Mason Senator Woodley and Mr Harris and then ordered

1 That Heather Hill was not duly elected at the election held on 3 October 1998 2 That Mr Len Harris be declared duly elected as a Senator for the State of Queensland in the place for which Heather Hill was returned 3 That the second respondent and the Attorney-General for the Commonwealth each bear their own costs 4 That the Commonwealth pay the costs of the petitioner Senator Woodley Senator Mason Mr OrsquoChee and Mr Harris and their costs on previous occasions which have been reserved 5 Certify for counsel

4513 Lastly His Honour noted that Mr Sharples was not present and directed that his petition be re-listed before Justice Callinan to make such orders as he thought appropriate having regard to proceedings in the Sue petition

4514 On 29 July 1999 proceedings in the Sharples petition resumed before Justice Callinan The petitioner Mr Sharples represented himself the first respondent Ms Hill did not appear the second respondent the AEC was represented by Mr Swan of AGS the Attorney-General (Intervening) did not appear and on the question of costs the Commonwealth was represented by Mr Belcher of AGS (instructed by the AEC)

4515 His Honour ordered that

1 The petition be dismissed 2 The second respondent bear its own costs 3 The Commonwealth pay the costs of the petitioner of todayrsquos proceedings and of previous occasions on which costs were reserved

4516 The outcome on costs for both petitions was that under section 360(4) of the Electoral Act the Commonwealth was ordered to pay the costs on a partyparty basis of all the parties (except the Attorney-General and the AEC) in the proceedings extending over a period of some six months and involving numerous counsel and senior counsel Whilst the public interest in these petitions was properly served in all proceedings the award of costs against the Commonwealth will amount to a substantial cost to the public purse

4517 The AEC has now been advised by the Constitutional Unit of the Australian Government Solicitor and the Department of Finance and Administration that the costs awarded against the Commonwealth are the responsibility of the AEC There is no suggestion that the AEC was at fault in the conduct of the election or proceedings on the petitions

5 Implications of the Sue and Sharples Decisions

51 Jurisdiction of the Court of Disputed Returns

511 The majority judgment of the High Court (Gleeson CJ Gaudron Gummow and Hayne JJ) in the SueSharples petitions held that section 354 of the Electoral Act validly conferred jurisdiction upon the Court of Disputed Returns to determine the constitutional question raised in the petitions namely whether Ms Heather Hill was disqualified from being elected under section 44(i) of the Constitution

512 That is it has been concluded that the Court of Disputed Returns has jurisdiction to hear petitions raising questions of constitutional disqualifications filed under Division 1 of Part XXII of the Electoral Act The corollary is that the jurisdiction of the Court of Disputed Returns to hear questions of constitutional qualifications is not limited to matters referred to the Court by the Parliament under Division 2 of Part XXII the Electoral Act

513 The jurisdictional decision in the SueSharples petitions is in accordance with the conduct of proceedings in 1992 in Sykes v Cleary (1992) 176 CLR 77 which was initiated by way of a petition filed by Mr Ian Sykes under Division 1 of Part XXII of the Electoral Act The Sykes v Cleary decision resulted in the disqualification of Mr Phil Cleary under section 44(iv) of the Constitution for holding an office of profit under the Crown at the time of his nomination and a finding that other candidates in the by-election for the Division of Wills Mr Kardamitisis (ALP) and Mr Delacretaz (Liberal Party) were disqualified under section 44(i) of the Constitution for holding dual citizenship with Greece and Switzerland respectively

514 The jurisdictional decision in the SueSharples petitions is also in accordance with the conduct of proceedings in 1996 in Free v Kelly (1996) 70 ALJR 809 which was initiated by way of a petition filed by Mr Ross Free under Division 1 of Part XXII of the Electoral Act The Free v Kelly decision resulted in the disqualification of Ms Jackie Kelly under section 44(iv) of the Constitution for holding an office of profit under the Crown at the time of her nomination

515 The history of the separation of powers between the Parliament and the Judiciary in relation to such matters begins with the commencement of the Commonwealth in 1901 when section 47 of the Constitution prevailed

Until the Parliament otherwise provides any question respecting the qualifications of a senator or of a member of the House of Representatives or respecting a vacancy in either House of the Parliament and any question of a disputed election to either House shall be determined by the House in which the question arises

516 The Parliament then otherwise provided in sections 192-206 of the Commonwealth Electoral Act 1902 to the effect that the validity of any disputed election or return was to be decided by the High Court sitting as the Court of Disputed Returns

517 Further in section 6 of the Commonwealth Electoral Act 1907 the Parliament provided that any question on the qualifications of Members of Parliament or on a vacancy in the Parliament could be referred to the Court by resolution of the House of the Parliament in which the question arose In 1918 these two Acts were consolidated into the Commonwealth Electoral Act 1918 and now appear as Divisions 1 and 2 of Part XXII of the Electoral Act

518 The most recent example of the referral by the Parliament of a question concerning the qualifications of a Member of Parliament is the case of Senator Robert Wood in 1988 when the Senate referred the question of his qualifications by way of Division 2 of Part XXII of the Electoral Act to the Court of Disputed Returns Senator Wood was subsequently found to be disqualified by section 163 of the Electoral Act because he was not an Australian citizen

519 During the course of the 1999 proceedings in the SueSharples petitions the matter of Mr Warren Entsch MP and his alleged disqualification under section 44(v) of the Constitution was raised in the Parliament On 10 June 1999 the Leader of the Opposition moved in the House of Representatives

That the following question be referred to the Court of Disputed Returns for determination pursuant to section 376 of the Commonwealth Electoral Act 1918 Whether the place of the honourable Member for Leichhardt (Mr Entsch) has become vacant pursuant to the provisions of section 44(v) of the Constitution

5110 In response the Attorney-General moved in the House of Representatives that the motion be amended to read as follows

That the House determines that the member for Leichhardt does not have any direct or indirect pecuniary interest with the Public Service of the Commonwealth within the meaning of section 44(v) of the Constitution by reason of any contract entered into by Cape York Concrete Pty Ltd since 3 October 1998 and the member for Leichhardt is therefore not incapable of sitting as a member of this House

5111 The amendment moved by the Attorney-General was resolved in the affirmative That is in the Entsch matter the House of Representatives resolved not to refer the question of the constitutional qualifications of the Member for Leichhardt to the Court of Disputed Returns for consideration but instead resolved itself that he was not so disqualified This action asserted the right of the Parliament to make determinations on the constitutional qualifications of its own members without the involvement of the Judiciary

5112 It could be suggested that such determinations about constitutional qualifications made on the numbers in the relevant House of the Parliament might not be entirely disinterested at a political level And it might appear that anyone other than a Member of Parliament who wishes to challenge the constitutional qualifications of a sitting Member is foreclosed from doing so by the time limitation in section 355(e) of the Electoral Act which provides that a petition must be filed with the High Court within 40 days of the return of the writ for the relevant election

5113 However in those circumstances where the elected Parliament has already formed and the petition filing period has passed the Common Informers (Parliamentary Disqualifications) Act 1975 enables any person to sue the High Court for the payment of $200 per day for the period during which a Member of Parliament sits while being disqualified after being served with the originating process and the sum of $200 only in respect of a past breach The Act restricts such suits to a period no earlier than 12 months before the day on which the suit is instituted In relation to the Entsch matter this would mean that for any common informers action to be instituted Mr Entsch must have been disqualified as alleged within the 12 months preceding the date on which the suit was filed

5114 The most significant issues arising from the related matters discussed above would appear to be twofold

(a) whether the Electoral Act should continue to provide that the constitutional qualifications of Members of Parliament can be disputed by way of petition from any elector or candidate to the Court of Disputed Returns within 40 day days of the return of the writ for the election

(b) whether in the absence of either a referral to the Court of Disputed Returns by the House affected or a petition to the Court within 40 days of the return of the writ for the election or a common informerrsquos suit the Parliament should retain its authority to decide on the constitutional qualifications of its own members

5115 These issues arise out of the dispute resolution scheme provided for in the Electoral Act by the Parliament in the early part of this century and have not before been given direct consideration by the JSCEM since the major amendments to the Electoral Act in 1983 However given that these questions also go to the separation of powers between the Parliament and Judiciary and may therefore require considered submissions from all interested parties the AEC makes the following recommendation

Recommendation 1 That the JSCEM seek a reference to inquire into the powers and functions of the Australian Electoral Commission as expressed in Part II of the Electoral Act and Part I of the Referendum Act and the powers and functions of the Court of Disputed Returns as expressed in Part XXII of the Electoral Act and in Part VIII of the Referendum Act

5116 The recommendation includes reference to the powers and functions of the AEC in the context of the issues raised in part 53 below

52 Constitutional Disqualifications

521 The decision of the High Court in the SueSharples petitions was that any candidate who is a subject or citizen of a foreign power such as the United Kingdom is disqualified at the time of nomination from election to the Parliament That is Ms Heather Hill was disqualified from being elected under section 44(i) of the Constitution

522 This decision was made by the majority members of the Court (Gleeson CJ Gaudron Gummow and Hayne JJ) after they had decided that the Court of Disputed Returns had jurisdiction to hear the petition The other members of the Court (McHugh Kirby and Callinan JJ) who decided that the Court of Disputed Returns had no jurisdiction to hear the petition were not required to form a view on the constitutional qualifications question

523 This decision of the High Court on the interpretation of section 44(i) of the Constitution represents a highly significant statement about the constitutional relationship between the United Kingdom and Australia and in particular makes it very clear that persons holding dual citizenship with the United Kingdom are as equally subject to the constitutional disqualification as persons holding dual citizenship with any other foreign power

524 This may not have been clearly apparent from Sykes v Cleary in 1992 for example where after finding that Mr Phil Cleary was disqualified under section 44(iv) of the Constitution the Court went on to apply section 44(i) of the Constitution to two other candidates Mr Kardamitsis (ALP) and Mr Delacretaz (Liberal Party) who held dual citizenship with Greece and Switzerland respectively and found that they would have also been disqualified Although the Court indicated that all ldquoreasonable stepsrdquo should be taken by candidates to divest themselves of dual citizenship a doubt may have remained after this case as to whether this rule applied equally to British subjects The judgment in the SueSharples petitions should now remove any such doubts

525 However in its publications provided to intending candidates since the 1992 Sykes v Cleary decision the AEC did not find it necessary to make any such distinctions between the United Kingdom and other foreign powers in warning intending candidates to take reasonable steps to divest themselves of dual citizenship before nomination

526 For example on 17 July 1999 some three months before the 1998 federal election the AEC published Electoral Backgrounder No 4 entitled ldquoCandidate Disqualifications Section 44 of the Constitutionrdquo which provided a detailed discussion of the constitutional disqualifications for candidates at federal elections The AEC included information on how British subjects could divest themselves of dual citizenship in paragraph 27 This Backgrounder was made available to the public in hard copy from all AEC offices on the AEC Internet site (wwwaecgovau) and was provided to all candidates as part of the AEC ldquoCandidates Information Kitrdquo

4316 On 22 April in directions before Justice Callinan His Honour ruled on the various points of disagreement in the draft Statement of Facts in the Case Stated between the petitioner Mr Sharples and the two respondents Ms Hill and the AEC This resulted in the addition of the numbers of first preference votes ldquoabove the linerdquo and ldquobelow the linerdquo received by Ms Hill which Mr Sharples submitted would be pertinent to his argument for a Senate ldquoby-electionrdquo or fresh election However His Honour declined to make any changes to the questions in the Case Stated that were agreed in the Sue petition proceedings

4317 At the conclusion of the directions hearing Justice Callinan directed the parties to join in the preparation of a document to reflect the various amendments as ordered to the draft Statement of Facts in the Case Stated in the Sharples proceedings and directed that the amended document be submitted to him by 27 April for certification and referral to the Full Bench Costs in these preliminary proceedings were reserved

4318 Following these proceedings the petitioner Mr Sharples wrote various letters to the other parties expressing his dissatisfaction with the proceedings and filed an affidavit with the Court (which was not served on the other parties) complaining about the conduct of the other parties in negotiations In the event Justice Callinan certified the Case Stated and Statement of Facts in the Sharples petition proceedings and the matter was listed for hearing concurrently or consecutively with the Sue petition proceedings on 11-12 May

44 Substantive Proceedings in the Petitions

441 The hearing by the Full Bench of the High Court of the Case Stated in the Sue petition and the Case Stated in the Sharples petition took place on 11-12 May 1999 in Canberra and because of the number and length of submissions was extended on the second day for another day into 13 May

442 The first petitioner Mr Sue was represented by Mr Stephen Finch SC with Ms Elizabeth Collins The second petitioner Mr Sharples represented himself The first respondent to each petition Ms Heather Hill was represented by Mr Robert Ellicott QC and Mr David Rofe QC with Mr Anthony Tudehope The second respondent to each petition the AEC was represented by Mr Maurice Swan a barrister from the Australian Government Solicitor with considerable experience in disputed proportional representation elections The Attorney-General for the Commonwealth (Intervening) was represented by the Solicitor-General Mr David Bennett QC with Mr Nye Perram and Mr Christopher Ward

443 The first day of the hearing was occupied with the first question in the Case Stated ldquoDoes section 354 of the Act validly confer upon the Court of Disputed Returns jurisdiction to determine the issues raised in the petitionrdquo Counsel for the first respondent Ms Hill submitted that the purported conferral of power upon the Court under section 354 of the Electoral Act was invalid because it contravened the doctrine of separation of powers That is the determination of disputed elections and returns is ancillary to the legislative function of the Parliament and is not a judicial function

444 It was also submitted by Counsel for Ms Hill that even if the Court had jurisdiction to try the petition its powers did not extend to ruling upon whether the first respondent was incapable of being chosen by reason of section 44(i) of the Constitution That is when hearing a petition filed under Division 1 of Part XXII of the Electoral Act the Court is limited to consideration of alleged illegal practices per section 362 of the Act and Division 1 does not confer power on the Court to hear claims in a petition of constitutional disqualification

445 It was further submitted by Counsel for Ms Hill that the Courtrsquos power to consider whether a person was qualified to be a Member of Parliament arises only in Division 2 of Part XXII of the Electoral Act by means of a question referred to the Court by resolution of the relevant House of the Parliament This is why additional powers are conferred on the Court pursuant to section 379 of the Act Counsel for the first respondent relied on the judgment of Gaudron J in Hudson v Lee (1993) 115 ALR 343 where Her Honour held that section 362 of the Act was an ldquoexhaustive statementrdquo of the circumstances in which an election might be declared invalid or void in answer to a petition filed under Division 1 of Part XXII of the Act

446 In response Counsel for the petitioner Mr Sue and the Solicitor-General for the Commonwealth both submitted that the Court should not adopt such an unduly narrow reading of Part XXII of the Electoral Act The Solicitor-General submitted that the view expressed by Gaudron J in Hudson v Lee is limited to questions of misconduct and is authority only for the proposition that misconduct is not actionable unless it finds a source in section 362 of the Act The AEC made no submissions in relation to this first question in the Case Stated

447 The question whether the Court had jurisdiction to determine whether the first respondent Ms Hill was ldquoincapable of being chosenrdquo as a Senator by reason of section 44(i) of the Constitution inevitably drew the Court into the question whether it was sitting as the High Court of Australia and thus having the jurisdiction conferred on the High Court by the Constitution or whether it was sitting as a separate statutory Court namely the Court of Disputed Returns and thus having the jurisdiction conferred on it under Part XXII of the Electoral Act

448 The second question in the Case Stated ldquoWas the first respondent at the date of her nomination a subject or citizen of a foreign powerrdquo was dealt with in two parts whether the United Kingdom is a ldquoforeign powerrdquo for the purposes of section 44(i) of the Constitution and whether Ms Hill was a ldquosubject or citizenrdquo of the United Kingdom irrespective of whether the United Kingdom is a foreign power The AEC made no submissions in relation to this second question in the Case Stated

449 There was little disagreement between the parties concerned that when section 44(i) was enacted the framers of the Constitution did not envisage the phrase ldquoforeign powerrdquo to include the United Kingdom Indeed until 1948 and the passing of the Nationality and Citizenship Act 1948 citizenship of the United Kingdom was the norm for the majority of Australians

4410 Counsel for the first respondent Ms Hill submitted that as at 1900 the phrase ldquoforeign powerrdquo did not and was not intended to include the United Kingdom and that none of the events circumstances or legislative enactments since 1900 have converted the special and unique relationship between the Commonwealth of Australia and the United Kingdom into a relationship now between the Commonwealth and a ldquoforeign powerrdquo It was submitted that the relationship was like that between a parent and a child which forever binds the child to the parent

4411 In relation to whether Ms Hill was a ldquosubject or a citizenrdquo of the United Kingdom Counsel for Ms Hill endeavoured to distinguish the Courtrsquos decision in Sykes v Cleary (1992) 176 CLR 77 on the grounds that Ms Hill was at the time of her nomination an Australian citizen This it was submitted was enough to avoid the operation of section 44(i)

4412 In response Counsel for the petitioner Mr Sue and the Solicitor-General for the Commonwealth both submitted that the United Kingdom is a ldquoforeign powerrdquo for the purposes of section 44(i) of the Constitution Counsel for the petitioner further submitted that even if the United Kingdom was not a foreign power in 1900 and even if difficulties arise in identifying the exact point in time when it became a foreign power it can nevertheless be said with confidence that the emergence of Australia as an independent nation and the occurrence of various relevant events particularly the passage of the Australia Act 1986 mean that at least when Ms Hill was nominated for election the United Kingdom had truly become a ldquoforeign powerrdquo

4413 Finally Counsel for the petitioner Mr Sue and the Solicitor-General for the Commonwealth both submitted that at the date of her nomination Ms Hill held British citizenship and had not taken all reasonable (or any) steps to divest herself of that citizenship In particular she had not made the appropriate declaration of renunciation of that citizenship as per Sykes v Cleary That is if the United Kingdom is a ldquoforeign powerrdquo within the meaning of section 44(i) then Ms Hill was incapable of being chosen as a Senator

4414 In relation to the third question in the Case Stated ldquoWas the first respondent duly elected at the electionrdquo there was common ground between the parties that if the Court found that at the date of her nomination Ms Hill was incapable of being chosen as a Senator by reason of her being a subject or citizen of a foreign power then it must follow that the first respondent was not duly elected at the election

4415 In relation to the fourth question in the Case Stated ldquoIf the first respondent was not duly elected was the election absolutely voidrdquo the parties in Sue v Hill agreed with the submission by the Solicitor-General for the Commonwealth that this question should be answered in the negative that is the election should not be declared absolutely void and a recount would be the appropriate remedy However the second petitioner Mr Sharples submitted that the question should be answered in the positive and a ldquowhole new electionrdquo should be conducted

4416 In relation to the fifth question in the Case Stated ldquoIf the election should not be declared void absolutely should the second respondent conduct a recount of the ballot papers cast for the purpose of determining the candidate entitled to be declared electedrdquo Counsel for the AEC submitted that a recount of the ballot papers for the position of Ms Hill would be the most appropriate remedy per In re Wood (1988) 167 CLR 145 Counsel for the petitioner Mr Sue Counsel for the first respondent Ms Hill and the Solicitor-General for the Commonwealth agreed with the submissions of the AEC

4417 In response to questions from the Bench Counsel for the AEC further submitted that it was highly probable that a member of the same political party as Ms Hill would be elected in her place on a recount of the ballot papers That is a recount would probably elect Mr Len Harris of One Nation in place of Ms Hill of One Nation because around 99 of electors who voted 1 for Ms Hill voted 2 for Mr Harris the second candidate on the One Nation group voting ticket Nevertheless until the recount was actually conducted this remained an hypothetical proposition

4418 In opposition to the submissions of the AEC the second petitioner Mr Sharples submitted that the Court could not be absolutely confident that the votersrsquo original intentions would be reflected by a recount given the distribution of first preferences for Ms Hill above and below the line on the ballot papers He referred also to the fact that Ms Hill was elected third in a field of six whilst in the precedent case In re Wood Mr Wood was elected last in a field of twelve He submitted that a fresh election was therefore the most appropriate remedy The Court then ordered Counsel for the AEC to provide further written submissions on the different consequences that might flow from the different order in which Mr Wood was elected in 1988 and Ms Hill in 1998

4419 The further written submissions were filed by the AEC on 18 May 1999 and showed that in its amicus role the AEC had given early consideration as to whether the election of other candidates would be disturbed by a recount if Ms Hill were to be disqualified and had concluded that this was so unlikely that their involvement in the proceedings need not be suggested to the Court The AEC further submitted that the different order of election in the Wood and the Hill cases would not change the fact that Mr Harris of One Nation would most probably be elected on a recount to replace Ms Hill In the event Mr Sharples chose to file further written submissions in response to the further written submissions of the AEC in which he endeavoured to distinguish In re Wood and further argued the case for a fresh election

4420 The sixth and final question in the Case Stated was ldquoSave for those otherwise dealt with by order who should pay the costs of the Stated Case and of the hearing of the Stated Case before the Full High Courtrdquo Counsel for the petitioner Mr Sue submitted that if the petition was successful the first respondent Ms Hill should pay his costs Counsel for the first respondent Ms Hill submitted that the Commonwealth should pay her costs because the questions raised were ldquoof great contemporary importancerdquo Alternatively it was submitted that if the petition failed then her costs should be paid by the petitioner The AEC submitted that no costs order should be made against the AEC and sought no costs order against the other parties

4421 The Solicitor-General for the Commonwealth submitted that no costs order should be made against the Commonwealth (under section 360(4) of the Electoral Act) and sought no costs order against the other parties The submission that the Commonwealth should not pay the costs of the other parties was not well received by the Bench Justice Callinan called it ldquoan extraordinary submissionrdquo

4422 Justice Gaudron cavilled at the submission by the Solicitor-General on the grounds that ldquoone half of the argument at least is concerned with matters relating to the effect of the Act ndash perhaps more than one halfrdquo and went on to say that ldquodeficienciesrdquo in the Act ldquohave been drawn to the attention of the Commonwealth in litigation for many yearsrdquo yet ldquopeople have been content more or less to leave [the Act] as it is with little thought as to how it operatesrdquo (transcript 12 May 1999 pp 65-66)

4423 The Decision in the Petitions On 23 June 1999 the Full Bench of the High Court handed down its judgment in Sue v Hill (1999) 73 ALJR 1016 and Sharples v Hill (B49 of 1998 High Court 23 June 1999 unreported) (Attachment 2) The majority of the Court (Gleeson CJ Gaudron Gummow and Hayne JJ) answered the questions in the Case Stated as follows

(a) Does s 354 of the Act validly confer upon the Court of Disputed Returns jurisdiction to determine the issues raised in the petition

Answer Yes

(b) Was the first respondent at the date of her nomination a subject or citizen of a foreign power within the meaning of s 44(i) of the Constitution

Answer Yes

(c) Was the first respondent duly elected at the election

Answer No

(d) If no to (c) was the election void absolutely

Answer No

(e) If no to (d) should the second respondent conduct a recount of the ballot papers cast for the election for the purposes of determining the candidate entitled to be elected to the place for which the first respondent was returned

Answer Inappropriate to answer

(f) Save for the otherwise dealt with by order who should pay the costs of the Stated Case and of the hearing of the Stated Case before the Full High Court

Answer The Commonwealth should pay the costs of the petitioner and the first respondent The second respondent should bear its own costs

4424 In delivering the judgment of the Court in the Sue v Hill and the Sharples v Hill petitions Chief Justice Gleeson made the following summary

In these two cases which were commenced in the Court of Disputed Returns the election of Mrs Hill as a Senator for the State of Queensland was challenged on the ground that at the date of her nomination she was incapable of being chosen as a Senator The specific ground of disqualification alleged was related to section 44(i) of the Constitution and was that at the date of nomination Mrs Hill was a subject or citizen of a foreign power namely the United Kingdom

The members of the Court who constituted the Court of Disputed Returns in each case raised certain questions for the decision of the full High Court

The first question was whether the Court of Disputed Returns has the jurisdiction invoked by the respective petitioners that is to say jurisdiction under Division 1 of Part XXII of the Commonwealth Electoral Act 1918 to consider a challenge to an election based solely on the ground of disqualification under section 44 of the Constitution Four members of the Court (Gleeson CJ Gaudron Gummow and Hayne JJ) have answered that question in the affirmative holding that there is jurisdiction Three members of the Court (McHugh Kirby Callinan JJ) have answered the question in the negative holding that jurisdiction does not exist

The three members of the Court who held that there was no jurisdiction of the kind invoked did not for that reason go on to answer the remaining questions

The four members of the Court who held that there is jurisdiction dealt with the remaining questions as follows

(a) The United Kingdom is a foreign power within the meaning of section 44 of the Constitution (b) At the time of her nomination Mrs Hill was a subject or citizen of a foreign power and was therefore incapable of being chosen as a Senator (c) Mrs Hill was therefore not duly elected (d) The consequence is not that the entire election of Senators for Queensland was void absolutely

Those four members of the Court were of the opinion that there should be a recount

As to the manner and extent of such recount these are matters upon which persons who have not been represented in the proceedings might wish to have the opportunity of being heard Accordingly each case has been remitted to the Court of Disputed Returns In the case of Sue v Hill the Court will sit at 930 am tomorrow for the purpose of considering the future course of the proceedings and if necessary giving directions

It was ordered that the Commonwealth should pay the costs of the petitioners and Mrs Hill

4425 The conclusion by the Court that other persons involved in the Queensland Senate election should be heard on the manner and extent of a recount was in response to the submissions made by Mr Sharples that the result of a recount as hypothesised by the AEC (the election of Mr Len Harris of One Nation to replace Ms Hill) might not transpire and the election or nonshyelection of the other candidates might be disturbed At paragraph 179 of the decision Justice Gaudron expanded on the doubts about the outcome of a recount that were raised in the Court by Mr Sharplesrsquo submissions

Although nothing was put to suggest that the true intention of the voters cannot be ascertained by a recount it emerged at the hearing that there was a real question as to the manner in which the recount should be conducted As formulated question (e) posits that a recount should be conducted only for the third Senate position However it is possible that a recount of all votes might have consequences for the fourth fifth and sixth Senators Those persons were not represented at the hearing It may be that that was because having regard to the terms of question (e) they were of the view that their positions would not be affected by a recount In the circumstances the appropriate course is to answer question (e) in each of the cases stated ldquoInappropriate to answerrdquo leaving the issue to be determined by a single Justice after hearing such submission if any as the persons returned as the fourth fifth and sixth Senators wish to make

45 Later Proceedings in the Petitions

451 On 24 June 1999 Chief Justice Gleeson sat as the Court of Disputed Returns to further progress the issues about the manner and extent of a recount The petitioner Mr Sue was represented by Ms Collins the first respondent Ms Hill was represented by Mr Templeton the second respondent the AEC was represented by Mr Swan of AGS and Mr Burmester QC appeared for the Attorney-General for the Commonwealth (Intervening) In addition two other persons involved in the election appeared Senator-elect Mason was represented by Mr Shannon and Senator OrsquoChee was represented by Mr Saunders

452 His Honour indicated from the outset that the purpose of the hearing was to address the concerns detailed in paragraph 179 of Justice Gaudronrsquos judgment namely that everyone who had a possible interest in a recount be given an opportunity to be heard His Honour identified three categories of such persons First Mr Len Harris the second candidate on the One Nation group voting ticket second the candidates elected in the fourth fifth and sixth positions for the Queensland Senate and third any non-elected candidate who might possibly replace any of the candidates elected to the fourth fifth and sixth positions Counsel for the AEC identified Ms Jann Piasecki Mr Drew Hutton Senator OrsquoChee and Mr John Bradford as persons who might have an interest within the categories set by the Chief Justice

453 His Honour then directed that a letter be sent immediately by the AEC to Senator-elect Ludwig Senator Woodley Mr John Bradford Mr Len Harris Ms Jann Piasecki and Mr Drew Hutton drawing their attention to the petition and the decision of the Court advising the intention to conduct a recount and that they had the opportunity to address the Court on the manner and extent of that recount

454 The Court was advised by Counsel for the AEC that if a recount was ordered by the Court it would be done by computer as permitted by section 273A of the Electoral Act and could be done the following day in approximately 45 minutes subject to the availability of scrutineers for the interested parties

455 Towards the end of these proceedings Counsel for the first respondent Ms Hill indicated that on the finding by the Full Bench that Ms Hill was not duly elected his client no longer had any interest in the proceedings He was therefore granted leave to be excused from further appearance and was not present for the costs orders at the end of these proceedings

456 On 29 June 1999 proceedings resumed before Chief Justice Gleeson by reference to a Notice of Motion of 28 June 1999 filed by the AEC setting out proposed orders and attaching a schedule for the conduct of a recount as follows

(1) A vote indicated on a ballot paper opposite the name of Heather Hill be counted to the candidate next in the order of the voterrsquos preference and the numbers indicating subsequent preferences be treated as altered accordingly (2) The further counting and recounting be conducted subject to direction (1) as nearly as practicable in accordance with the relevant provisions of section 273A of the Commonwealth Electoral Act 1918 (ldquothe Actrdquo) as if there were 6 vacancies to be filled (3) The further counting and recounting identify which candidate is entitled to be elected to the third place left unfilled by the ineligibility of Heather Hill (4) The further counting and recounting identify which (if any) candidate or candidates other than Mr Ludwig Mr Mason or Senator Woodley is or are entitled to be elected in the place of Mr Ludwig Mr Mason or Senator Woodley to any of the fourth fifth or sixth places to be filled (5) Notwithstanding direction (1) any ballot paper ruled to be informal during the 1998 scrutiny be treated as informal in the further counting and recounting (6) Notwithstanding direction (1) any ballot paper ruled to be formal during the 1998 scrutiny be treated as formal in the further counting and recounting except where a ballot paper is marked with a first preference for Heather Hill followed by the marking of a second preference for each of 2 or more other candidates (7) Notwithstanding direction (1) any ballot paper showing the same preference for Heather Hill and one or more other continuing candidates be set aside as exhausted in accordance with subsection 273(26) at the point in the scrutiny at which it would have been set aside had Heather Hill been a candidate eligible for election (8) Ballot papers marked with group voting ticket votes not be counted again but that the group voting tickets figures ascertained in the 1998 scrutiny be adjusted in accordance with direction (1) for the purposes of the further counting and recounting

457 The petitioner Mr Sue was represented by Ms Tait the second respondent the AEC was represented by Mr Swan of AGS and the Attorney-General for the Commonwealth (Intervening) was represented by Mr Burmester QC A number of other parties sought leave to intervene Mr Harris the second candidate on the One Nation group voting ticket was represented by Mr Gageler Senator Woodley was represented by Mr Davey Senator-elect Mason was represented by Mr Wood and Senator OrsquoChee was represented by Mr Applegarth An affidavit of 29 June of Mr McCarthy for the AEC testified to the notification of these parties by the AEC as ordered at the previous proceedings

458 An affidavit of 28 June of Mr Spelman of the AEC which was read to the Court by Mr Swan for the AEC advised the appropriateness of a full recount computerised in accordance with section 273A of the Electoral Act and in accordance with the directions in the schedule attached to the proposed orders and the inappropriateness of a recount that did not take into account all formal votes cast in the election

459 A full recount as proposed by the AEC was supported by Senator Woodley Senator-elect Mason Senator OrsquoChee Mr Harris and the Attorney-General on the basis that the recount would resolve whether any questions arose about disturbing the election or non-election of other candidates and that the conduct of the recount would not pre-empt any submissions they might make regarding the form of any resultant orders His Honour then ordered the AEC to conduct a full recount according to the schedule and report back to the Court with the results Costs in these proceedings were reserved

4510 On 2 July 1999 proceedings resumed before Chief Justice Gleeson with the same appearances as for 29 July with the exception that (now) Senator Mason and (now) Mr OrsquoChee were represented by Mr Wood An affidavit of 30 June of Mr Spelman of the AEC which was read to the Court by Mr Swan for the AEC advised the outcome of the full recount which was that Mr Harris achieved a quota in place of Ms Hill and the other candidates elected were unchanged from those elected at the original election

4511 With respect to costs in these later proceedings Mr Swan for the AEC and Mr Burmester for the Attorney-General submitted that each party should bear their own costs The other parties present (with the first respondent Ms Hill now absent) submitted that the Commonwealth should pay their costs under section 360(4) of the Electoral Act

4512 His Honour formally granted leave to intervene to Mr OrsquoChee Senator Mason Senator Woodley and Mr Harris and then ordered

1 That Heather Hill was not duly elected at the election held on 3 October 1998 2 That Mr Len Harris be declared duly elected as a Senator for the State of Queensland in the place for which Heather Hill was returned 3 That the second respondent and the Attorney-General for the Commonwealth each bear their own costs 4 That the Commonwealth pay the costs of the petitioner Senator Woodley Senator Mason Mr OrsquoChee and Mr Harris and their costs on previous occasions which have been reserved 5 Certify for counsel

4513 Lastly His Honour noted that Mr Sharples was not present and directed that his petition be re-listed before Justice Callinan to make such orders as he thought appropriate having regard to proceedings in the Sue petition

4514 On 29 July 1999 proceedings in the Sharples petition resumed before Justice Callinan The petitioner Mr Sharples represented himself the first respondent Ms Hill did not appear the second respondent the AEC was represented by Mr Swan of AGS the Attorney-General (Intervening) did not appear and on the question of costs the Commonwealth was represented by Mr Belcher of AGS (instructed by the AEC)

4515 His Honour ordered that

1 The petition be dismissed 2 The second respondent bear its own costs 3 The Commonwealth pay the costs of the petitioner of todayrsquos proceedings and of previous occasions on which costs were reserved

4516 The outcome on costs for both petitions was that under section 360(4) of the Electoral Act the Commonwealth was ordered to pay the costs on a partyparty basis of all the parties (except the Attorney-General and the AEC) in the proceedings extending over a period of some six months and involving numerous counsel and senior counsel Whilst the public interest in these petitions was properly served in all proceedings the award of costs against the Commonwealth will amount to a substantial cost to the public purse

4517 The AEC has now been advised by the Constitutional Unit of the Australian Government Solicitor and the Department of Finance and Administration that the costs awarded against the Commonwealth are the responsibility of the AEC There is no suggestion that the AEC was at fault in the conduct of the election or proceedings on the petitions

5 Implications of the Sue and Sharples Decisions

51 Jurisdiction of the Court of Disputed Returns

511 The majority judgment of the High Court (Gleeson CJ Gaudron Gummow and Hayne JJ) in the SueSharples petitions held that section 354 of the Electoral Act validly conferred jurisdiction upon the Court of Disputed Returns to determine the constitutional question raised in the petitions namely whether Ms Heather Hill was disqualified from being elected under section 44(i) of the Constitution

512 That is it has been concluded that the Court of Disputed Returns has jurisdiction to hear petitions raising questions of constitutional disqualifications filed under Division 1 of Part XXII of the Electoral Act The corollary is that the jurisdiction of the Court of Disputed Returns to hear questions of constitutional qualifications is not limited to matters referred to the Court by the Parliament under Division 2 of Part XXII the Electoral Act

513 The jurisdictional decision in the SueSharples petitions is in accordance with the conduct of proceedings in 1992 in Sykes v Cleary (1992) 176 CLR 77 which was initiated by way of a petition filed by Mr Ian Sykes under Division 1 of Part XXII of the Electoral Act The Sykes v Cleary decision resulted in the disqualification of Mr Phil Cleary under section 44(iv) of the Constitution for holding an office of profit under the Crown at the time of his nomination and a finding that other candidates in the by-election for the Division of Wills Mr Kardamitisis (ALP) and Mr Delacretaz (Liberal Party) were disqualified under section 44(i) of the Constitution for holding dual citizenship with Greece and Switzerland respectively

514 The jurisdictional decision in the SueSharples petitions is also in accordance with the conduct of proceedings in 1996 in Free v Kelly (1996) 70 ALJR 809 which was initiated by way of a petition filed by Mr Ross Free under Division 1 of Part XXII of the Electoral Act The Free v Kelly decision resulted in the disqualification of Ms Jackie Kelly under section 44(iv) of the Constitution for holding an office of profit under the Crown at the time of her nomination

515 The history of the separation of powers between the Parliament and the Judiciary in relation to such matters begins with the commencement of the Commonwealth in 1901 when section 47 of the Constitution prevailed

Until the Parliament otherwise provides any question respecting the qualifications of a senator or of a member of the House of Representatives or respecting a vacancy in either House of the Parliament and any question of a disputed election to either House shall be determined by the House in which the question arises

516 The Parliament then otherwise provided in sections 192-206 of the Commonwealth Electoral Act 1902 to the effect that the validity of any disputed election or return was to be decided by the High Court sitting as the Court of Disputed Returns

517 Further in section 6 of the Commonwealth Electoral Act 1907 the Parliament provided that any question on the qualifications of Members of Parliament or on a vacancy in the Parliament could be referred to the Court by resolution of the House of the Parliament in which the question arose In 1918 these two Acts were consolidated into the Commonwealth Electoral Act 1918 and now appear as Divisions 1 and 2 of Part XXII of the Electoral Act

518 The most recent example of the referral by the Parliament of a question concerning the qualifications of a Member of Parliament is the case of Senator Robert Wood in 1988 when the Senate referred the question of his qualifications by way of Division 2 of Part XXII of the Electoral Act to the Court of Disputed Returns Senator Wood was subsequently found to be disqualified by section 163 of the Electoral Act because he was not an Australian citizen

519 During the course of the 1999 proceedings in the SueSharples petitions the matter of Mr Warren Entsch MP and his alleged disqualification under section 44(v) of the Constitution was raised in the Parliament On 10 June 1999 the Leader of the Opposition moved in the House of Representatives

That the following question be referred to the Court of Disputed Returns for determination pursuant to section 376 of the Commonwealth Electoral Act 1918 Whether the place of the honourable Member for Leichhardt (Mr Entsch) has become vacant pursuant to the provisions of section 44(v) of the Constitution

5110 In response the Attorney-General moved in the House of Representatives that the motion be amended to read as follows

That the House determines that the member for Leichhardt does not have any direct or indirect pecuniary interest with the Public Service of the Commonwealth within the meaning of section 44(v) of the Constitution by reason of any contract entered into by Cape York Concrete Pty Ltd since 3 October 1998 and the member for Leichhardt is therefore not incapable of sitting as a member of this House

5111 The amendment moved by the Attorney-General was resolved in the affirmative That is in the Entsch matter the House of Representatives resolved not to refer the question of the constitutional qualifications of the Member for Leichhardt to the Court of Disputed Returns for consideration but instead resolved itself that he was not so disqualified This action asserted the right of the Parliament to make determinations on the constitutional qualifications of its own members without the involvement of the Judiciary

5112 It could be suggested that such determinations about constitutional qualifications made on the numbers in the relevant House of the Parliament might not be entirely disinterested at a political level And it might appear that anyone other than a Member of Parliament who wishes to challenge the constitutional qualifications of a sitting Member is foreclosed from doing so by the time limitation in section 355(e) of the Electoral Act which provides that a petition must be filed with the High Court within 40 days of the return of the writ for the relevant election

5113 However in those circumstances where the elected Parliament has already formed and the petition filing period has passed the Common Informers (Parliamentary Disqualifications) Act 1975 enables any person to sue the High Court for the payment of $200 per day for the period during which a Member of Parliament sits while being disqualified after being served with the originating process and the sum of $200 only in respect of a past breach The Act restricts such suits to a period no earlier than 12 months before the day on which the suit is instituted In relation to the Entsch matter this would mean that for any common informers action to be instituted Mr Entsch must have been disqualified as alleged within the 12 months preceding the date on which the suit was filed

5114 The most significant issues arising from the related matters discussed above would appear to be twofold

(a) whether the Electoral Act should continue to provide that the constitutional qualifications of Members of Parliament can be disputed by way of petition from any elector or candidate to the Court of Disputed Returns within 40 day days of the return of the writ for the election

(b) whether in the absence of either a referral to the Court of Disputed Returns by the House affected or a petition to the Court within 40 days of the return of the writ for the election or a common informerrsquos suit the Parliament should retain its authority to decide on the constitutional qualifications of its own members

5115 These issues arise out of the dispute resolution scheme provided for in the Electoral Act by the Parliament in the early part of this century and have not before been given direct consideration by the JSCEM since the major amendments to the Electoral Act in 1983 However given that these questions also go to the separation of powers between the Parliament and Judiciary and may therefore require considered submissions from all interested parties the AEC makes the following recommendation

Recommendation 1 That the JSCEM seek a reference to inquire into the powers and functions of the Australian Electoral Commission as expressed in Part II of the Electoral Act and Part I of the Referendum Act and the powers and functions of the Court of Disputed Returns as expressed in Part XXII of the Electoral Act and in Part VIII of the Referendum Act

5116 The recommendation includes reference to the powers and functions of the AEC in the context of the issues raised in part 53 below

52 Constitutional Disqualifications

521 The decision of the High Court in the SueSharples petitions was that any candidate who is a subject or citizen of a foreign power such as the United Kingdom is disqualified at the time of nomination from election to the Parliament That is Ms Heather Hill was disqualified from being elected under section 44(i) of the Constitution

522 This decision was made by the majority members of the Court (Gleeson CJ Gaudron Gummow and Hayne JJ) after they had decided that the Court of Disputed Returns had jurisdiction to hear the petition The other members of the Court (McHugh Kirby and Callinan JJ) who decided that the Court of Disputed Returns had no jurisdiction to hear the petition were not required to form a view on the constitutional qualifications question

523 This decision of the High Court on the interpretation of section 44(i) of the Constitution represents a highly significant statement about the constitutional relationship between the United Kingdom and Australia and in particular makes it very clear that persons holding dual citizenship with the United Kingdom are as equally subject to the constitutional disqualification as persons holding dual citizenship with any other foreign power

524 This may not have been clearly apparent from Sykes v Cleary in 1992 for example where after finding that Mr Phil Cleary was disqualified under section 44(iv) of the Constitution the Court went on to apply section 44(i) of the Constitution to two other candidates Mr Kardamitsis (ALP) and Mr Delacretaz (Liberal Party) who held dual citizenship with Greece and Switzerland respectively and found that they would have also been disqualified Although the Court indicated that all ldquoreasonable stepsrdquo should be taken by candidates to divest themselves of dual citizenship a doubt may have remained after this case as to whether this rule applied equally to British subjects The judgment in the SueSharples petitions should now remove any such doubts

525 However in its publications provided to intending candidates since the 1992 Sykes v Cleary decision the AEC did not find it necessary to make any such distinctions between the United Kingdom and other foreign powers in warning intending candidates to take reasonable steps to divest themselves of dual citizenship before nomination

526 For example on 17 July 1999 some three months before the 1998 federal election the AEC published Electoral Backgrounder No 4 entitled ldquoCandidate Disqualifications Section 44 of the Constitutionrdquo which provided a detailed discussion of the constitutional disqualifications for candidates at federal elections The AEC included information on how British subjects could divest themselves of dual citizenship in paragraph 27 This Backgrounder was made available to the public in hard copy from all AEC offices on the AEC Internet site (wwwaecgovau) and was provided to all candidates as part of the AEC ldquoCandidates Information Kitrdquo

443 The first day of the hearing was occupied with the first question in the Case Stated ldquoDoes section 354 of the Act validly confer upon the Court of Disputed Returns jurisdiction to determine the issues raised in the petitionrdquo Counsel for the first respondent Ms Hill submitted that the purported conferral of power upon the Court under section 354 of the Electoral Act was invalid because it contravened the doctrine of separation of powers That is the determination of disputed elections and returns is ancillary to the legislative function of the Parliament and is not a judicial function

444 It was also submitted by Counsel for Ms Hill that even if the Court had jurisdiction to try the petition its powers did not extend to ruling upon whether the first respondent was incapable of being chosen by reason of section 44(i) of the Constitution That is when hearing a petition filed under Division 1 of Part XXII of the Electoral Act the Court is limited to consideration of alleged illegal practices per section 362 of the Act and Division 1 does not confer power on the Court to hear claims in a petition of constitutional disqualification

445 It was further submitted by Counsel for Ms Hill that the Courtrsquos power to consider whether a person was qualified to be a Member of Parliament arises only in Division 2 of Part XXII of the Electoral Act by means of a question referred to the Court by resolution of the relevant House of the Parliament This is why additional powers are conferred on the Court pursuant to section 379 of the Act Counsel for the first respondent relied on the judgment of Gaudron J in Hudson v Lee (1993) 115 ALR 343 where Her Honour held that section 362 of the Act was an ldquoexhaustive statementrdquo of the circumstances in which an election might be declared invalid or void in answer to a petition filed under Division 1 of Part XXII of the Act

446 In response Counsel for the petitioner Mr Sue and the Solicitor-General for the Commonwealth both submitted that the Court should not adopt such an unduly narrow reading of Part XXII of the Electoral Act The Solicitor-General submitted that the view expressed by Gaudron J in Hudson v Lee is limited to questions of misconduct and is authority only for the proposition that misconduct is not actionable unless it finds a source in section 362 of the Act The AEC made no submissions in relation to this first question in the Case Stated

447 The question whether the Court had jurisdiction to determine whether the first respondent Ms Hill was ldquoincapable of being chosenrdquo as a Senator by reason of section 44(i) of the Constitution inevitably drew the Court into the question whether it was sitting as the High Court of Australia and thus having the jurisdiction conferred on the High Court by the Constitution or whether it was sitting as a separate statutory Court namely the Court of Disputed Returns and thus having the jurisdiction conferred on it under Part XXII of the Electoral Act

448 The second question in the Case Stated ldquoWas the first respondent at the date of her nomination a subject or citizen of a foreign powerrdquo was dealt with in two parts whether the United Kingdom is a ldquoforeign powerrdquo for the purposes of section 44(i) of the Constitution and whether Ms Hill was a ldquosubject or citizenrdquo of the United Kingdom irrespective of whether the United Kingdom is a foreign power The AEC made no submissions in relation to this second question in the Case Stated

449 There was little disagreement between the parties concerned that when section 44(i) was enacted the framers of the Constitution did not envisage the phrase ldquoforeign powerrdquo to include the United Kingdom Indeed until 1948 and the passing of the Nationality and Citizenship Act 1948 citizenship of the United Kingdom was the norm for the majority of Australians

4410 Counsel for the first respondent Ms Hill submitted that as at 1900 the phrase ldquoforeign powerrdquo did not and was not intended to include the United Kingdom and that none of the events circumstances or legislative enactments since 1900 have converted the special and unique relationship between the Commonwealth of Australia and the United Kingdom into a relationship now between the Commonwealth and a ldquoforeign powerrdquo It was submitted that the relationship was like that between a parent and a child which forever binds the child to the parent

4411 In relation to whether Ms Hill was a ldquosubject or a citizenrdquo of the United Kingdom Counsel for Ms Hill endeavoured to distinguish the Courtrsquos decision in Sykes v Cleary (1992) 176 CLR 77 on the grounds that Ms Hill was at the time of her nomination an Australian citizen This it was submitted was enough to avoid the operation of section 44(i)

4412 In response Counsel for the petitioner Mr Sue and the Solicitor-General for the Commonwealth both submitted that the United Kingdom is a ldquoforeign powerrdquo for the purposes of section 44(i) of the Constitution Counsel for the petitioner further submitted that even if the United Kingdom was not a foreign power in 1900 and even if difficulties arise in identifying the exact point in time when it became a foreign power it can nevertheless be said with confidence that the emergence of Australia as an independent nation and the occurrence of various relevant events particularly the passage of the Australia Act 1986 mean that at least when Ms Hill was nominated for election the United Kingdom had truly become a ldquoforeign powerrdquo

4413 Finally Counsel for the petitioner Mr Sue and the Solicitor-General for the Commonwealth both submitted that at the date of her nomination Ms Hill held British citizenship and had not taken all reasonable (or any) steps to divest herself of that citizenship In particular she had not made the appropriate declaration of renunciation of that citizenship as per Sykes v Cleary That is if the United Kingdom is a ldquoforeign powerrdquo within the meaning of section 44(i) then Ms Hill was incapable of being chosen as a Senator

4414 In relation to the third question in the Case Stated ldquoWas the first respondent duly elected at the electionrdquo there was common ground between the parties that if the Court found that at the date of her nomination Ms Hill was incapable of being chosen as a Senator by reason of her being a subject or citizen of a foreign power then it must follow that the first respondent was not duly elected at the election

4415 In relation to the fourth question in the Case Stated ldquoIf the first respondent was not duly elected was the election absolutely voidrdquo the parties in Sue v Hill agreed with the submission by the Solicitor-General for the Commonwealth that this question should be answered in the negative that is the election should not be declared absolutely void and a recount would be the appropriate remedy However the second petitioner Mr Sharples submitted that the question should be answered in the positive and a ldquowhole new electionrdquo should be conducted

4416 In relation to the fifth question in the Case Stated ldquoIf the election should not be declared void absolutely should the second respondent conduct a recount of the ballot papers cast for the purpose of determining the candidate entitled to be declared electedrdquo Counsel for the AEC submitted that a recount of the ballot papers for the position of Ms Hill would be the most appropriate remedy per In re Wood (1988) 167 CLR 145 Counsel for the petitioner Mr Sue Counsel for the first respondent Ms Hill and the Solicitor-General for the Commonwealth agreed with the submissions of the AEC

4417 In response to questions from the Bench Counsel for the AEC further submitted that it was highly probable that a member of the same political party as Ms Hill would be elected in her place on a recount of the ballot papers That is a recount would probably elect Mr Len Harris of One Nation in place of Ms Hill of One Nation because around 99 of electors who voted 1 for Ms Hill voted 2 for Mr Harris the second candidate on the One Nation group voting ticket Nevertheless until the recount was actually conducted this remained an hypothetical proposition

4418 In opposition to the submissions of the AEC the second petitioner Mr Sharples submitted that the Court could not be absolutely confident that the votersrsquo original intentions would be reflected by a recount given the distribution of first preferences for Ms Hill above and below the line on the ballot papers He referred also to the fact that Ms Hill was elected third in a field of six whilst in the precedent case In re Wood Mr Wood was elected last in a field of twelve He submitted that a fresh election was therefore the most appropriate remedy The Court then ordered Counsel for the AEC to provide further written submissions on the different consequences that might flow from the different order in which Mr Wood was elected in 1988 and Ms Hill in 1998

4419 The further written submissions were filed by the AEC on 18 May 1999 and showed that in its amicus role the AEC had given early consideration as to whether the election of other candidates would be disturbed by a recount if Ms Hill were to be disqualified and had concluded that this was so unlikely that their involvement in the proceedings need not be suggested to the Court The AEC further submitted that the different order of election in the Wood and the Hill cases would not change the fact that Mr Harris of One Nation would most probably be elected on a recount to replace Ms Hill In the event Mr Sharples chose to file further written submissions in response to the further written submissions of the AEC in which he endeavoured to distinguish In re Wood and further argued the case for a fresh election

4420 The sixth and final question in the Case Stated was ldquoSave for those otherwise dealt with by order who should pay the costs of the Stated Case and of the hearing of the Stated Case before the Full High Courtrdquo Counsel for the petitioner Mr Sue submitted that if the petition was successful the first respondent Ms Hill should pay his costs Counsel for the first respondent Ms Hill submitted that the Commonwealth should pay her costs because the questions raised were ldquoof great contemporary importancerdquo Alternatively it was submitted that if the petition failed then her costs should be paid by the petitioner The AEC submitted that no costs order should be made against the AEC and sought no costs order against the other parties

4421 The Solicitor-General for the Commonwealth submitted that no costs order should be made against the Commonwealth (under section 360(4) of the Electoral Act) and sought no costs order against the other parties The submission that the Commonwealth should not pay the costs of the other parties was not well received by the Bench Justice Callinan called it ldquoan extraordinary submissionrdquo

4422 Justice Gaudron cavilled at the submission by the Solicitor-General on the grounds that ldquoone half of the argument at least is concerned with matters relating to the effect of the Act ndash perhaps more than one halfrdquo and went on to say that ldquodeficienciesrdquo in the Act ldquohave been drawn to the attention of the Commonwealth in litigation for many yearsrdquo yet ldquopeople have been content more or less to leave [the Act] as it is with little thought as to how it operatesrdquo (transcript 12 May 1999 pp 65-66)

4423 The Decision in the Petitions On 23 June 1999 the Full Bench of the High Court handed down its judgment in Sue v Hill (1999) 73 ALJR 1016 and Sharples v Hill (B49 of 1998 High Court 23 June 1999 unreported) (Attachment 2) The majority of the Court (Gleeson CJ Gaudron Gummow and Hayne JJ) answered the questions in the Case Stated as follows

(a) Does s 354 of the Act validly confer upon the Court of Disputed Returns jurisdiction to determine the issues raised in the petition

Answer Yes

(b) Was the first respondent at the date of her nomination a subject or citizen of a foreign power within the meaning of s 44(i) of the Constitution

Answer Yes

(c) Was the first respondent duly elected at the election

Answer No

(d) If no to (c) was the election void absolutely

Answer No

(e) If no to (d) should the second respondent conduct a recount of the ballot papers cast for the election for the purposes of determining the candidate entitled to be elected to the place for which the first respondent was returned

Answer Inappropriate to answer

(f) Save for the otherwise dealt with by order who should pay the costs of the Stated Case and of the hearing of the Stated Case before the Full High Court

Answer The Commonwealth should pay the costs of the petitioner and the first respondent The second respondent should bear its own costs

4424 In delivering the judgment of the Court in the Sue v Hill and the Sharples v Hill petitions Chief Justice Gleeson made the following summary

In these two cases which were commenced in the Court of Disputed Returns the election of Mrs Hill as a Senator for the State of Queensland was challenged on the ground that at the date of her nomination she was incapable of being chosen as a Senator The specific ground of disqualification alleged was related to section 44(i) of the Constitution and was that at the date of nomination Mrs Hill was a subject or citizen of a foreign power namely the United Kingdom

The members of the Court who constituted the Court of Disputed Returns in each case raised certain questions for the decision of the full High Court

The first question was whether the Court of Disputed Returns has the jurisdiction invoked by the respective petitioners that is to say jurisdiction under Division 1 of Part XXII of the Commonwealth Electoral Act 1918 to consider a challenge to an election based solely on the ground of disqualification under section 44 of the Constitution Four members of the Court (Gleeson CJ Gaudron Gummow and Hayne JJ) have answered that question in the affirmative holding that there is jurisdiction Three members of the Court (McHugh Kirby Callinan JJ) have answered the question in the negative holding that jurisdiction does not exist

The three members of the Court who held that there was no jurisdiction of the kind invoked did not for that reason go on to answer the remaining questions

The four members of the Court who held that there is jurisdiction dealt with the remaining questions as follows

(a) The United Kingdom is a foreign power within the meaning of section 44 of the Constitution (b) At the time of her nomination Mrs Hill was a subject or citizen of a foreign power and was therefore incapable of being chosen as a Senator (c) Mrs Hill was therefore not duly elected (d) The consequence is not that the entire election of Senators for Queensland was void absolutely

Those four members of the Court were of the opinion that there should be a recount

As to the manner and extent of such recount these are matters upon which persons who have not been represented in the proceedings might wish to have the opportunity of being heard Accordingly each case has been remitted to the Court of Disputed Returns In the case of Sue v Hill the Court will sit at 930 am tomorrow for the purpose of considering the future course of the proceedings and if necessary giving directions

It was ordered that the Commonwealth should pay the costs of the petitioners and Mrs Hill

4425 The conclusion by the Court that other persons involved in the Queensland Senate election should be heard on the manner and extent of a recount was in response to the submissions made by Mr Sharples that the result of a recount as hypothesised by the AEC (the election of Mr Len Harris of One Nation to replace Ms Hill) might not transpire and the election or nonshyelection of the other candidates might be disturbed At paragraph 179 of the decision Justice Gaudron expanded on the doubts about the outcome of a recount that were raised in the Court by Mr Sharplesrsquo submissions

Although nothing was put to suggest that the true intention of the voters cannot be ascertained by a recount it emerged at the hearing that there was a real question as to the manner in which the recount should be conducted As formulated question (e) posits that a recount should be conducted only for the third Senate position However it is possible that a recount of all votes might have consequences for the fourth fifth and sixth Senators Those persons were not represented at the hearing It may be that that was because having regard to the terms of question (e) they were of the view that their positions would not be affected by a recount In the circumstances the appropriate course is to answer question (e) in each of the cases stated ldquoInappropriate to answerrdquo leaving the issue to be determined by a single Justice after hearing such submission if any as the persons returned as the fourth fifth and sixth Senators wish to make

45 Later Proceedings in the Petitions

451 On 24 June 1999 Chief Justice Gleeson sat as the Court of Disputed Returns to further progress the issues about the manner and extent of a recount The petitioner Mr Sue was represented by Ms Collins the first respondent Ms Hill was represented by Mr Templeton the second respondent the AEC was represented by Mr Swan of AGS and Mr Burmester QC appeared for the Attorney-General for the Commonwealth (Intervening) In addition two other persons involved in the election appeared Senator-elect Mason was represented by Mr Shannon and Senator OrsquoChee was represented by Mr Saunders

452 His Honour indicated from the outset that the purpose of the hearing was to address the concerns detailed in paragraph 179 of Justice Gaudronrsquos judgment namely that everyone who had a possible interest in a recount be given an opportunity to be heard His Honour identified three categories of such persons First Mr Len Harris the second candidate on the One Nation group voting ticket second the candidates elected in the fourth fifth and sixth positions for the Queensland Senate and third any non-elected candidate who might possibly replace any of the candidates elected to the fourth fifth and sixth positions Counsel for the AEC identified Ms Jann Piasecki Mr Drew Hutton Senator OrsquoChee and Mr John Bradford as persons who might have an interest within the categories set by the Chief Justice

453 His Honour then directed that a letter be sent immediately by the AEC to Senator-elect Ludwig Senator Woodley Mr John Bradford Mr Len Harris Ms Jann Piasecki and Mr Drew Hutton drawing their attention to the petition and the decision of the Court advising the intention to conduct a recount and that they had the opportunity to address the Court on the manner and extent of that recount

454 The Court was advised by Counsel for the AEC that if a recount was ordered by the Court it would be done by computer as permitted by section 273A of the Electoral Act and could be done the following day in approximately 45 minutes subject to the availability of scrutineers for the interested parties

455 Towards the end of these proceedings Counsel for the first respondent Ms Hill indicated that on the finding by the Full Bench that Ms Hill was not duly elected his client no longer had any interest in the proceedings He was therefore granted leave to be excused from further appearance and was not present for the costs orders at the end of these proceedings

456 On 29 June 1999 proceedings resumed before Chief Justice Gleeson by reference to a Notice of Motion of 28 June 1999 filed by the AEC setting out proposed orders and attaching a schedule for the conduct of a recount as follows

(1) A vote indicated on a ballot paper opposite the name of Heather Hill be counted to the candidate next in the order of the voterrsquos preference and the numbers indicating subsequent preferences be treated as altered accordingly (2) The further counting and recounting be conducted subject to direction (1) as nearly as practicable in accordance with the relevant provisions of section 273A of the Commonwealth Electoral Act 1918 (ldquothe Actrdquo) as if there were 6 vacancies to be filled (3) The further counting and recounting identify which candidate is entitled to be elected to the third place left unfilled by the ineligibility of Heather Hill (4) The further counting and recounting identify which (if any) candidate or candidates other than Mr Ludwig Mr Mason or Senator Woodley is or are entitled to be elected in the place of Mr Ludwig Mr Mason or Senator Woodley to any of the fourth fifth or sixth places to be filled (5) Notwithstanding direction (1) any ballot paper ruled to be informal during the 1998 scrutiny be treated as informal in the further counting and recounting (6) Notwithstanding direction (1) any ballot paper ruled to be formal during the 1998 scrutiny be treated as formal in the further counting and recounting except where a ballot paper is marked with a first preference for Heather Hill followed by the marking of a second preference for each of 2 or more other candidates (7) Notwithstanding direction (1) any ballot paper showing the same preference for Heather Hill and one or more other continuing candidates be set aside as exhausted in accordance with subsection 273(26) at the point in the scrutiny at which it would have been set aside had Heather Hill been a candidate eligible for election (8) Ballot papers marked with group voting ticket votes not be counted again but that the group voting tickets figures ascertained in the 1998 scrutiny be adjusted in accordance with direction (1) for the purposes of the further counting and recounting

457 The petitioner Mr Sue was represented by Ms Tait the second respondent the AEC was represented by Mr Swan of AGS and the Attorney-General for the Commonwealth (Intervening) was represented by Mr Burmester QC A number of other parties sought leave to intervene Mr Harris the second candidate on the One Nation group voting ticket was represented by Mr Gageler Senator Woodley was represented by Mr Davey Senator-elect Mason was represented by Mr Wood and Senator OrsquoChee was represented by Mr Applegarth An affidavit of 29 June of Mr McCarthy for the AEC testified to the notification of these parties by the AEC as ordered at the previous proceedings

458 An affidavit of 28 June of Mr Spelman of the AEC which was read to the Court by Mr Swan for the AEC advised the appropriateness of a full recount computerised in accordance with section 273A of the Electoral Act and in accordance with the directions in the schedule attached to the proposed orders and the inappropriateness of a recount that did not take into account all formal votes cast in the election

459 A full recount as proposed by the AEC was supported by Senator Woodley Senator-elect Mason Senator OrsquoChee Mr Harris and the Attorney-General on the basis that the recount would resolve whether any questions arose about disturbing the election or non-election of other candidates and that the conduct of the recount would not pre-empt any submissions they might make regarding the form of any resultant orders His Honour then ordered the AEC to conduct a full recount according to the schedule and report back to the Court with the results Costs in these proceedings were reserved

4510 On 2 July 1999 proceedings resumed before Chief Justice Gleeson with the same appearances as for 29 July with the exception that (now) Senator Mason and (now) Mr OrsquoChee were represented by Mr Wood An affidavit of 30 June of Mr Spelman of the AEC which was read to the Court by Mr Swan for the AEC advised the outcome of the full recount which was that Mr Harris achieved a quota in place of Ms Hill and the other candidates elected were unchanged from those elected at the original election

4511 With respect to costs in these later proceedings Mr Swan for the AEC and Mr Burmester for the Attorney-General submitted that each party should bear their own costs The other parties present (with the first respondent Ms Hill now absent) submitted that the Commonwealth should pay their costs under section 360(4) of the Electoral Act

4512 His Honour formally granted leave to intervene to Mr OrsquoChee Senator Mason Senator Woodley and Mr Harris and then ordered

1 That Heather Hill was not duly elected at the election held on 3 October 1998 2 That Mr Len Harris be declared duly elected as a Senator for the State of Queensland in the place for which Heather Hill was returned 3 That the second respondent and the Attorney-General for the Commonwealth each bear their own costs 4 That the Commonwealth pay the costs of the petitioner Senator Woodley Senator Mason Mr OrsquoChee and Mr Harris and their costs on previous occasions which have been reserved 5 Certify for counsel

4513 Lastly His Honour noted that Mr Sharples was not present and directed that his petition be re-listed before Justice Callinan to make such orders as he thought appropriate having regard to proceedings in the Sue petition

4514 On 29 July 1999 proceedings in the Sharples petition resumed before Justice Callinan The petitioner Mr Sharples represented himself the first respondent Ms Hill did not appear the second respondent the AEC was represented by Mr Swan of AGS the Attorney-General (Intervening) did not appear and on the question of costs the Commonwealth was represented by Mr Belcher of AGS (instructed by the AEC)

4515 His Honour ordered that

1 The petition be dismissed 2 The second respondent bear its own costs 3 The Commonwealth pay the costs of the petitioner of todayrsquos proceedings and of previous occasions on which costs were reserved

4516 The outcome on costs for both petitions was that under section 360(4) of the Electoral Act the Commonwealth was ordered to pay the costs on a partyparty basis of all the parties (except the Attorney-General and the AEC) in the proceedings extending over a period of some six months and involving numerous counsel and senior counsel Whilst the public interest in these petitions was properly served in all proceedings the award of costs against the Commonwealth will amount to a substantial cost to the public purse

4517 The AEC has now been advised by the Constitutional Unit of the Australian Government Solicitor and the Department of Finance and Administration that the costs awarded against the Commonwealth are the responsibility of the AEC There is no suggestion that the AEC was at fault in the conduct of the election or proceedings on the petitions

5 Implications of the Sue and Sharples Decisions

51 Jurisdiction of the Court of Disputed Returns

511 The majority judgment of the High Court (Gleeson CJ Gaudron Gummow and Hayne JJ) in the SueSharples petitions held that section 354 of the Electoral Act validly conferred jurisdiction upon the Court of Disputed Returns to determine the constitutional question raised in the petitions namely whether Ms Heather Hill was disqualified from being elected under section 44(i) of the Constitution

512 That is it has been concluded that the Court of Disputed Returns has jurisdiction to hear petitions raising questions of constitutional disqualifications filed under Division 1 of Part XXII of the Electoral Act The corollary is that the jurisdiction of the Court of Disputed Returns to hear questions of constitutional qualifications is not limited to matters referred to the Court by the Parliament under Division 2 of Part XXII the Electoral Act

513 The jurisdictional decision in the SueSharples petitions is in accordance with the conduct of proceedings in 1992 in Sykes v Cleary (1992) 176 CLR 77 which was initiated by way of a petition filed by Mr Ian Sykes under Division 1 of Part XXII of the Electoral Act The Sykes v Cleary decision resulted in the disqualification of Mr Phil Cleary under section 44(iv) of the Constitution for holding an office of profit under the Crown at the time of his nomination and a finding that other candidates in the by-election for the Division of Wills Mr Kardamitisis (ALP) and Mr Delacretaz (Liberal Party) were disqualified under section 44(i) of the Constitution for holding dual citizenship with Greece and Switzerland respectively

514 The jurisdictional decision in the SueSharples petitions is also in accordance with the conduct of proceedings in 1996 in Free v Kelly (1996) 70 ALJR 809 which was initiated by way of a petition filed by Mr Ross Free under Division 1 of Part XXII of the Electoral Act The Free v Kelly decision resulted in the disqualification of Ms Jackie Kelly under section 44(iv) of the Constitution for holding an office of profit under the Crown at the time of her nomination

515 The history of the separation of powers between the Parliament and the Judiciary in relation to such matters begins with the commencement of the Commonwealth in 1901 when section 47 of the Constitution prevailed

Until the Parliament otherwise provides any question respecting the qualifications of a senator or of a member of the House of Representatives or respecting a vacancy in either House of the Parliament and any question of a disputed election to either House shall be determined by the House in which the question arises

516 The Parliament then otherwise provided in sections 192-206 of the Commonwealth Electoral Act 1902 to the effect that the validity of any disputed election or return was to be decided by the High Court sitting as the Court of Disputed Returns

517 Further in section 6 of the Commonwealth Electoral Act 1907 the Parliament provided that any question on the qualifications of Members of Parliament or on a vacancy in the Parliament could be referred to the Court by resolution of the House of the Parliament in which the question arose In 1918 these two Acts were consolidated into the Commonwealth Electoral Act 1918 and now appear as Divisions 1 and 2 of Part XXII of the Electoral Act

518 The most recent example of the referral by the Parliament of a question concerning the qualifications of a Member of Parliament is the case of Senator Robert Wood in 1988 when the Senate referred the question of his qualifications by way of Division 2 of Part XXII of the Electoral Act to the Court of Disputed Returns Senator Wood was subsequently found to be disqualified by section 163 of the Electoral Act because he was not an Australian citizen

519 During the course of the 1999 proceedings in the SueSharples petitions the matter of Mr Warren Entsch MP and his alleged disqualification under section 44(v) of the Constitution was raised in the Parliament On 10 June 1999 the Leader of the Opposition moved in the House of Representatives

That the following question be referred to the Court of Disputed Returns for determination pursuant to section 376 of the Commonwealth Electoral Act 1918 Whether the place of the honourable Member for Leichhardt (Mr Entsch) has become vacant pursuant to the provisions of section 44(v) of the Constitution

5110 In response the Attorney-General moved in the House of Representatives that the motion be amended to read as follows

That the House determines that the member for Leichhardt does not have any direct or indirect pecuniary interest with the Public Service of the Commonwealth within the meaning of section 44(v) of the Constitution by reason of any contract entered into by Cape York Concrete Pty Ltd since 3 October 1998 and the member for Leichhardt is therefore not incapable of sitting as a member of this House

5111 The amendment moved by the Attorney-General was resolved in the affirmative That is in the Entsch matter the House of Representatives resolved not to refer the question of the constitutional qualifications of the Member for Leichhardt to the Court of Disputed Returns for consideration but instead resolved itself that he was not so disqualified This action asserted the right of the Parliament to make determinations on the constitutional qualifications of its own members without the involvement of the Judiciary

5112 It could be suggested that such determinations about constitutional qualifications made on the numbers in the relevant House of the Parliament might not be entirely disinterested at a political level And it might appear that anyone other than a Member of Parliament who wishes to challenge the constitutional qualifications of a sitting Member is foreclosed from doing so by the time limitation in section 355(e) of the Electoral Act which provides that a petition must be filed with the High Court within 40 days of the return of the writ for the relevant election

5113 However in those circumstances where the elected Parliament has already formed and the petition filing period has passed the Common Informers (Parliamentary Disqualifications) Act 1975 enables any person to sue the High Court for the payment of $200 per day for the period during which a Member of Parliament sits while being disqualified after being served with the originating process and the sum of $200 only in respect of a past breach The Act restricts such suits to a period no earlier than 12 months before the day on which the suit is instituted In relation to the Entsch matter this would mean that for any common informers action to be instituted Mr Entsch must have been disqualified as alleged within the 12 months preceding the date on which the suit was filed

5114 The most significant issues arising from the related matters discussed above would appear to be twofold

(a) whether the Electoral Act should continue to provide that the constitutional qualifications of Members of Parliament can be disputed by way of petition from any elector or candidate to the Court of Disputed Returns within 40 day days of the return of the writ for the election

(b) whether in the absence of either a referral to the Court of Disputed Returns by the House affected or a petition to the Court within 40 days of the return of the writ for the election or a common informerrsquos suit the Parliament should retain its authority to decide on the constitutional qualifications of its own members

5115 These issues arise out of the dispute resolution scheme provided for in the Electoral Act by the Parliament in the early part of this century and have not before been given direct consideration by the JSCEM since the major amendments to the Electoral Act in 1983 However given that these questions also go to the separation of powers between the Parliament and Judiciary and may therefore require considered submissions from all interested parties the AEC makes the following recommendation

Recommendation 1 That the JSCEM seek a reference to inquire into the powers and functions of the Australian Electoral Commission as expressed in Part II of the Electoral Act and Part I of the Referendum Act and the powers and functions of the Court of Disputed Returns as expressed in Part XXII of the Electoral Act and in Part VIII of the Referendum Act

5116 The recommendation includes reference to the powers and functions of the AEC in the context of the issues raised in part 53 below

52 Constitutional Disqualifications

521 The decision of the High Court in the SueSharples petitions was that any candidate who is a subject or citizen of a foreign power such as the United Kingdom is disqualified at the time of nomination from election to the Parliament That is Ms Heather Hill was disqualified from being elected under section 44(i) of the Constitution

522 This decision was made by the majority members of the Court (Gleeson CJ Gaudron Gummow and Hayne JJ) after they had decided that the Court of Disputed Returns had jurisdiction to hear the petition The other members of the Court (McHugh Kirby and Callinan JJ) who decided that the Court of Disputed Returns had no jurisdiction to hear the petition were not required to form a view on the constitutional qualifications question

523 This decision of the High Court on the interpretation of section 44(i) of the Constitution represents a highly significant statement about the constitutional relationship between the United Kingdom and Australia and in particular makes it very clear that persons holding dual citizenship with the United Kingdom are as equally subject to the constitutional disqualification as persons holding dual citizenship with any other foreign power

524 This may not have been clearly apparent from Sykes v Cleary in 1992 for example where after finding that Mr Phil Cleary was disqualified under section 44(iv) of the Constitution the Court went on to apply section 44(i) of the Constitution to two other candidates Mr Kardamitsis (ALP) and Mr Delacretaz (Liberal Party) who held dual citizenship with Greece and Switzerland respectively and found that they would have also been disqualified Although the Court indicated that all ldquoreasonable stepsrdquo should be taken by candidates to divest themselves of dual citizenship a doubt may have remained after this case as to whether this rule applied equally to British subjects The judgment in the SueSharples petitions should now remove any such doubts

525 However in its publications provided to intending candidates since the 1992 Sykes v Cleary decision the AEC did not find it necessary to make any such distinctions between the United Kingdom and other foreign powers in warning intending candidates to take reasonable steps to divest themselves of dual citizenship before nomination

526 For example on 17 July 1999 some three months before the 1998 federal election the AEC published Electoral Backgrounder No 4 entitled ldquoCandidate Disqualifications Section 44 of the Constitutionrdquo which provided a detailed discussion of the constitutional disqualifications for candidates at federal elections The AEC included information on how British subjects could divest themselves of dual citizenship in paragraph 27 This Backgrounder was made available to the public in hard copy from all AEC offices on the AEC Internet site (wwwaecgovau) and was provided to all candidates as part of the AEC ldquoCandidates Information Kitrdquo

448 The second question in the Case Stated ldquoWas the first respondent at the date of her nomination a subject or citizen of a foreign powerrdquo was dealt with in two parts whether the United Kingdom is a ldquoforeign powerrdquo for the purposes of section 44(i) of the Constitution and whether Ms Hill was a ldquosubject or citizenrdquo of the United Kingdom irrespective of whether the United Kingdom is a foreign power The AEC made no submissions in relation to this second question in the Case Stated

449 There was little disagreement between the parties concerned that when section 44(i) was enacted the framers of the Constitution did not envisage the phrase ldquoforeign powerrdquo to include the United Kingdom Indeed until 1948 and the passing of the Nationality and Citizenship Act 1948 citizenship of the United Kingdom was the norm for the majority of Australians

4410 Counsel for the first respondent Ms Hill submitted that as at 1900 the phrase ldquoforeign powerrdquo did not and was not intended to include the United Kingdom and that none of the events circumstances or legislative enactments since 1900 have converted the special and unique relationship between the Commonwealth of Australia and the United Kingdom into a relationship now between the Commonwealth and a ldquoforeign powerrdquo It was submitted that the relationship was like that between a parent and a child which forever binds the child to the parent

4411 In relation to whether Ms Hill was a ldquosubject or a citizenrdquo of the United Kingdom Counsel for Ms Hill endeavoured to distinguish the Courtrsquos decision in Sykes v Cleary (1992) 176 CLR 77 on the grounds that Ms Hill was at the time of her nomination an Australian citizen This it was submitted was enough to avoid the operation of section 44(i)

4412 In response Counsel for the petitioner Mr Sue and the Solicitor-General for the Commonwealth both submitted that the United Kingdom is a ldquoforeign powerrdquo for the purposes of section 44(i) of the Constitution Counsel for the petitioner further submitted that even if the United Kingdom was not a foreign power in 1900 and even if difficulties arise in identifying the exact point in time when it became a foreign power it can nevertheless be said with confidence that the emergence of Australia as an independent nation and the occurrence of various relevant events particularly the passage of the Australia Act 1986 mean that at least when Ms Hill was nominated for election the United Kingdom had truly become a ldquoforeign powerrdquo

4413 Finally Counsel for the petitioner Mr Sue and the Solicitor-General for the Commonwealth both submitted that at the date of her nomination Ms Hill held British citizenship and had not taken all reasonable (or any) steps to divest herself of that citizenship In particular she had not made the appropriate declaration of renunciation of that citizenship as per Sykes v Cleary That is if the United Kingdom is a ldquoforeign powerrdquo within the meaning of section 44(i) then Ms Hill was incapable of being chosen as a Senator

4414 In relation to the third question in the Case Stated ldquoWas the first respondent duly elected at the electionrdquo there was common ground between the parties that if the Court found that at the date of her nomination Ms Hill was incapable of being chosen as a Senator by reason of her being a subject or citizen of a foreign power then it must follow that the first respondent was not duly elected at the election

4415 In relation to the fourth question in the Case Stated ldquoIf the first respondent was not duly elected was the election absolutely voidrdquo the parties in Sue v Hill agreed with the submission by the Solicitor-General for the Commonwealth that this question should be answered in the negative that is the election should not be declared absolutely void and a recount would be the appropriate remedy However the second petitioner Mr Sharples submitted that the question should be answered in the positive and a ldquowhole new electionrdquo should be conducted

4416 In relation to the fifth question in the Case Stated ldquoIf the election should not be declared void absolutely should the second respondent conduct a recount of the ballot papers cast for the purpose of determining the candidate entitled to be declared electedrdquo Counsel for the AEC submitted that a recount of the ballot papers for the position of Ms Hill would be the most appropriate remedy per In re Wood (1988) 167 CLR 145 Counsel for the petitioner Mr Sue Counsel for the first respondent Ms Hill and the Solicitor-General for the Commonwealth agreed with the submissions of the AEC

4417 In response to questions from the Bench Counsel for the AEC further submitted that it was highly probable that a member of the same political party as Ms Hill would be elected in her place on a recount of the ballot papers That is a recount would probably elect Mr Len Harris of One Nation in place of Ms Hill of One Nation because around 99 of electors who voted 1 for Ms Hill voted 2 for Mr Harris the second candidate on the One Nation group voting ticket Nevertheless until the recount was actually conducted this remained an hypothetical proposition

4418 In opposition to the submissions of the AEC the second petitioner Mr Sharples submitted that the Court could not be absolutely confident that the votersrsquo original intentions would be reflected by a recount given the distribution of first preferences for Ms Hill above and below the line on the ballot papers He referred also to the fact that Ms Hill was elected third in a field of six whilst in the precedent case In re Wood Mr Wood was elected last in a field of twelve He submitted that a fresh election was therefore the most appropriate remedy The Court then ordered Counsel for the AEC to provide further written submissions on the different consequences that might flow from the different order in which Mr Wood was elected in 1988 and Ms Hill in 1998

4419 The further written submissions were filed by the AEC on 18 May 1999 and showed that in its amicus role the AEC had given early consideration as to whether the election of other candidates would be disturbed by a recount if Ms Hill were to be disqualified and had concluded that this was so unlikely that their involvement in the proceedings need not be suggested to the Court The AEC further submitted that the different order of election in the Wood and the Hill cases would not change the fact that Mr Harris of One Nation would most probably be elected on a recount to replace Ms Hill In the event Mr Sharples chose to file further written submissions in response to the further written submissions of the AEC in which he endeavoured to distinguish In re Wood and further argued the case for a fresh election

4420 The sixth and final question in the Case Stated was ldquoSave for those otherwise dealt with by order who should pay the costs of the Stated Case and of the hearing of the Stated Case before the Full High Courtrdquo Counsel for the petitioner Mr Sue submitted that if the petition was successful the first respondent Ms Hill should pay his costs Counsel for the first respondent Ms Hill submitted that the Commonwealth should pay her costs because the questions raised were ldquoof great contemporary importancerdquo Alternatively it was submitted that if the petition failed then her costs should be paid by the petitioner The AEC submitted that no costs order should be made against the AEC and sought no costs order against the other parties

4421 The Solicitor-General for the Commonwealth submitted that no costs order should be made against the Commonwealth (under section 360(4) of the Electoral Act) and sought no costs order against the other parties The submission that the Commonwealth should not pay the costs of the other parties was not well received by the Bench Justice Callinan called it ldquoan extraordinary submissionrdquo

4422 Justice Gaudron cavilled at the submission by the Solicitor-General on the grounds that ldquoone half of the argument at least is concerned with matters relating to the effect of the Act ndash perhaps more than one halfrdquo and went on to say that ldquodeficienciesrdquo in the Act ldquohave been drawn to the attention of the Commonwealth in litigation for many yearsrdquo yet ldquopeople have been content more or less to leave [the Act] as it is with little thought as to how it operatesrdquo (transcript 12 May 1999 pp 65-66)

4423 The Decision in the Petitions On 23 June 1999 the Full Bench of the High Court handed down its judgment in Sue v Hill (1999) 73 ALJR 1016 and Sharples v Hill (B49 of 1998 High Court 23 June 1999 unreported) (Attachment 2) The majority of the Court (Gleeson CJ Gaudron Gummow and Hayne JJ) answered the questions in the Case Stated as follows

(a) Does s 354 of the Act validly confer upon the Court of Disputed Returns jurisdiction to determine the issues raised in the petition

Answer Yes

(b) Was the first respondent at the date of her nomination a subject or citizen of a foreign power within the meaning of s 44(i) of the Constitution

Answer Yes

(c) Was the first respondent duly elected at the election

Answer No

(d) If no to (c) was the election void absolutely

Answer No

(e) If no to (d) should the second respondent conduct a recount of the ballot papers cast for the election for the purposes of determining the candidate entitled to be elected to the place for which the first respondent was returned

Answer Inappropriate to answer

(f) Save for the otherwise dealt with by order who should pay the costs of the Stated Case and of the hearing of the Stated Case before the Full High Court

Answer The Commonwealth should pay the costs of the petitioner and the first respondent The second respondent should bear its own costs

4424 In delivering the judgment of the Court in the Sue v Hill and the Sharples v Hill petitions Chief Justice Gleeson made the following summary

In these two cases which were commenced in the Court of Disputed Returns the election of Mrs Hill as a Senator for the State of Queensland was challenged on the ground that at the date of her nomination she was incapable of being chosen as a Senator The specific ground of disqualification alleged was related to section 44(i) of the Constitution and was that at the date of nomination Mrs Hill was a subject or citizen of a foreign power namely the United Kingdom

The members of the Court who constituted the Court of Disputed Returns in each case raised certain questions for the decision of the full High Court

The first question was whether the Court of Disputed Returns has the jurisdiction invoked by the respective petitioners that is to say jurisdiction under Division 1 of Part XXII of the Commonwealth Electoral Act 1918 to consider a challenge to an election based solely on the ground of disqualification under section 44 of the Constitution Four members of the Court (Gleeson CJ Gaudron Gummow and Hayne JJ) have answered that question in the affirmative holding that there is jurisdiction Three members of the Court (McHugh Kirby Callinan JJ) have answered the question in the negative holding that jurisdiction does not exist

The three members of the Court who held that there was no jurisdiction of the kind invoked did not for that reason go on to answer the remaining questions

The four members of the Court who held that there is jurisdiction dealt with the remaining questions as follows

(a) The United Kingdom is a foreign power within the meaning of section 44 of the Constitution (b) At the time of her nomination Mrs Hill was a subject or citizen of a foreign power and was therefore incapable of being chosen as a Senator (c) Mrs Hill was therefore not duly elected (d) The consequence is not that the entire election of Senators for Queensland was void absolutely

Those four members of the Court were of the opinion that there should be a recount

As to the manner and extent of such recount these are matters upon which persons who have not been represented in the proceedings might wish to have the opportunity of being heard Accordingly each case has been remitted to the Court of Disputed Returns In the case of Sue v Hill the Court will sit at 930 am tomorrow for the purpose of considering the future course of the proceedings and if necessary giving directions

It was ordered that the Commonwealth should pay the costs of the petitioners and Mrs Hill

4425 The conclusion by the Court that other persons involved in the Queensland Senate election should be heard on the manner and extent of a recount was in response to the submissions made by Mr Sharples that the result of a recount as hypothesised by the AEC (the election of Mr Len Harris of One Nation to replace Ms Hill) might not transpire and the election or nonshyelection of the other candidates might be disturbed At paragraph 179 of the decision Justice Gaudron expanded on the doubts about the outcome of a recount that were raised in the Court by Mr Sharplesrsquo submissions

Although nothing was put to suggest that the true intention of the voters cannot be ascertained by a recount it emerged at the hearing that there was a real question as to the manner in which the recount should be conducted As formulated question (e) posits that a recount should be conducted only for the third Senate position However it is possible that a recount of all votes might have consequences for the fourth fifth and sixth Senators Those persons were not represented at the hearing It may be that that was because having regard to the terms of question (e) they were of the view that their positions would not be affected by a recount In the circumstances the appropriate course is to answer question (e) in each of the cases stated ldquoInappropriate to answerrdquo leaving the issue to be determined by a single Justice after hearing such submission if any as the persons returned as the fourth fifth and sixth Senators wish to make

45 Later Proceedings in the Petitions

451 On 24 June 1999 Chief Justice Gleeson sat as the Court of Disputed Returns to further progress the issues about the manner and extent of a recount The petitioner Mr Sue was represented by Ms Collins the first respondent Ms Hill was represented by Mr Templeton the second respondent the AEC was represented by Mr Swan of AGS and Mr Burmester QC appeared for the Attorney-General for the Commonwealth (Intervening) In addition two other persons involved in the election appeared Senator-elect Mason was represented by Mr Shannon and Senator OrsquoChee was represented by Mr Saunders

452 His Honour indicated from the outset that the purpose of the hearing was to address the concerns detailed in paragraph 179 of Justice Gaudronrsquos judgment namely that everyone who had a possible interest in a recount be given an opportunity to be heard His Honour identified three categories of such persons First Mr Len Harris the second candidate on the One Nation group voting ticket second the candidates elected in the fourth fifth and sixth positions for the Queensland Senate and third any non-elected candidate who might possibly replace any of the candidates elected to the fourth fifth and sixth positions Counsel for the AEC identified Ms Jann Piasecki Mr Drew Hutton Senator OrsquoChee and Mr John Bradford as persons who might have an interest within the categories set by the Chief Justice

453 His Honour then directed that a letter be sent immediately by the AEC to Senator-elect Ludwig Senator Woodley Mr John Bradford Mr Len Harris Ms Jann Piasecki and Mr Drew Hutton drawing their attention to the petition and the decision of the Court advising the intention to conduct a recount and that they had the opportunity to address the Court on the manner and extent of that recount

454 The Court was advised by Counsel for the AEC that if a recount was ordered by the Court it would be done by computer as permitted by section 273A of the Electoral Act and could be done the following day in approximately 45 minutes subject to the availability of scrutineers for the interested parties

455 Towards the end of these proceedings Counsel for the first respondent Ms Hill indicated that on the finding by the Full Bench that Ms Hill was not duly elected his client no longer had any interest in the proceedings He was therefore granted leave to be excused from further appearance and was not present for the costs orders at the end of these proceedings

456 On 29 June 1999 proceedings resumed before Chief Justice Gleeson by reference to a Notice of Motion of 28 June 1999 filed by the AEC setting out proposed orders and attaching a schedule for the conduct of a recount as follows

(1) A vote indicated on a ballot paper opposite the name of Heather Hill be counted to the candidate next in the order of the voterrsquos preference and the numbers indicating subsequent preferences be treated as altered accordingly (2) The further counting and recounting be conducted subject to direction (1) as nearly as practicable in accordance with the relevant provisions of section 273A of the Commonwealth Electoral Act 1918 (ldquothe Actrdquo) as if there were 6 vacancies to be filled (3) The further counting and recounting identify which candidate is entitled to be elected to the third place left unfilled by the ineligibility of Heather Hill (4) The further counting and recounting identify which (if any) candidate or candidates other than Mr Ludwig Mr Mason or Senator Woodley is or are entitled to be elected in the place of Mr Ludwig Mr Mason or Senator Woodley to any of the fourth fifth or sixth places to be filled (5) Notwithstanding direction (1) any ballot paper ruled to be informal during the 1998 scrutiny be treated as informal in the further counting and recounting (6) Notwithstanding direction (1) any ballot paper ruled to be formal during the 1998 scrutiny be treated as formal in the further counting and recounting except where a ballot paper is marked with a first preference for Heather Hill followed by the marking of a second preference for each of 2 or more other candidates (7) Notwithstanding direction (1) any ballot paper showing the same preference for Heather Hill and one or more other continuing candidates be set aside as exhausted in accordance with subsection 273(26) at the point in the scrutiny at which it would have been set aside had Heather Hill been a candidate eligible for election (8) Ballot papers marked with group voting ticket votes not be counted again but that the group voting tickets figures ascertained in the 1998 scrutiny be adjusted in accordance with direction (1) for the purposes of the further counting and recounting

457 The petitioner Mr Sue was represented by Ms Tait the second respondent the AEC was represented by Mr Swan of AGS and the Attorney-General for the Commonwealth (Intervening) was represented by Mr Burmester QC A number of other parties sought leave to intervene Mr Harris the second candidate on the One Nation group voting ticket was represented by Mr Gageler Senator Woodley was represented by Mr Davey Senator-elect Mason was represented by Mr Wood and Senator OrsquoChee was represented by Mr Applegarth An affidavit of 29 June of Mr McCarthy for the AEC testified to the notification of these parties by the AEC as ordered at the previous proceedings

458 An affidavit of 28 June of Mr Spelman of the AEC which was read to the Court by Mr Swan for the AEC advised the appropriateness of a full recount computerised in accordance with section 273A of the Electoral Act and in accordance with the directions in the schedule attached to the proposed orders and the inappropriateness of a recount that did not take into account all formal votes cast in the election

459 A full recount as proposed by the AEC was supported by Senator Woodley Senator-elect Mason Senator OrsquoChee Mr Harris and the Attorney-General on the basis that the recount would resolve whether any questions arose about disturbing the election or non-election of other candidates and that the conduct of the recount would not pre-empt any submissions they might make regarding the form of any resultant orders His Honour then ordered the AEC to conduct a full recount according to the schedule and report back to the Court with the results Costs in these proceedings were reserved

4510 On 2 July 1999 proceedings resumed before Chief Justice Gleeson with the same appearances as for 29 July with the exception that (now) Senator Mason and (now) Mr OrsquoChee were represented by Mr Wood An affidavit of 30 June of Mr Spelman of the AEC which was read to the Court by Mr Swan for the AEC advised the outcome of the full recount which was that Mr Harris achieved a quota in place of Ms Hill and the other candidates elected were unchanged from those elected at the original election

4511 With respect to costs in these later proceedings Mr Swan for the AEC and Mr Burmester for the Attorney-General submitted that each party should bear their own costs The other parties present (with the first respondent Ms Hill now absent) submitted that the Commonwealth should pay their costs under section 360(4) of the Electoral Act

4512 His Honour formally granted leave to intervene to Mr OrsquoChee Senator Mason Senator Woodley and Mr Harris and then ordered

1 That Heather Hill was not duly elected at the election held on 3 October 1998 2 That Mr Len Harris be declared duly elected as a Senator for the State of Queensland in the place for which Heather Hill was returned 3 That the second respondent and the Attorney-General for the Commonwealth each bear their own costs 4 That the Commonwealth pay the costs of the petitioner Senator Woodley Senator Mason Mr OrsquoChee and Mr Harris and their costs on previous occasions which have been reserved 5 Certify for counsel

4513 Lastly His Honour noted that Mr Sharples was not present and directed that his petition be re-listed before Justice Callinan to make such orders as he thought appropriate having regard to proceedings in the Sue petition

4514 On 29 July 1999 proceedings in the Sharples petition resumed before Justice Callinan The petitioner Mr Sharples represented himself the first respondent Ms Hill did not appear the second respondent the AEC was represented by Mr Swan of AGS the Attorney-General (Intervening) did not appear and on the question of costs the Commonwealth was represented by Mr Belcher of AGS (instructed by the AEC)

4515 His Honour ordered that

1 The petition be dismissed 2 The second respondent bear its own costs 3 The Commonwealth pay the costs of the petitioner of todayrsquos proceedings and of previous occasions on which costs were reserved

4516 The outcome on costs for both petitions was that under section 360(4) of the Electoral Act the Commonwealth was ordered to pay the costs on a partyparty basis of all the parties (except the Attorney-General and the AEC) in the proceedings extending over a period of some six months and involving numerous counsel and senior counsel Whilst the public interest in these petitions was properly served in all proceedings the award of costs against the Commonwealth will amount to a substantial cost to the public purse

4517 The AEC has now been advised by the Constitutional Unit of the Australian Government Solicitor and the Department of Finance and Administration that the costs awarded against the Commonwealth are the responsibility of the AEC There is no suggestion that the AEC was at fault in the conduct of the election or proceedings on the petitions

5 Implications of the Sue and Sharples Decisions

51 Jurisdiction of the Court of Disputed Returns

511 The majority judgment of the High Court (Gleeson CJ Gaudron Gummow and Hayne JJ) in the SueSharples petitions held that section 354 of the Electoral Act validly conferred jurisdiction upon the Court of Disputed Returns to determine the constitutional question raised in the petitions namely whether Ms Heather Hill was disqualified from being elected under section 44(i) of the Constitution

512 That is it has been concluded that the Court of Disputed Returns has jurisdiction to hear petitions raising questions of constitutional disqualifications filed under Division 1 of Part XXII of the Electoral Act The corollary is that the jurisdiction of the Court of Disputed Returns to hear questions of constitutional qualifications is not limited to matters referred to the Court by the Parliament under Division 2 of Part XXII the Electoral Act

513 The jurisdictional decision in the SueSharples petitions is in accordance with the conduct of proceedings in 1992 in Sykes v Cleary (1992) 176 CLR 77 which was initiated by way of a petition filed by Mr Ian Sykes under Division 1 of Part XXII of the Electoral Act The Sykes v Cleary decision resulted in the disqualification of Mr Phil Cleary under section 44(iv) of the Constitution for holding an office of profit under the Crown at the time of his nomination and a finding that other candidates in the by-election for the Division of Wills Mr Kardamitisis (ALP) and Mr Delacretaz (Liberal Party) were disqualified under section 44(i) of the Constitution for holding dual citizenship with Greece and Switzerland respectively

514 The jurisdictional decision in the SueSharples petitions is also in accordance with the conduct of proceedings in 1996 in Free v Kelly (1996) 70 ALJR 809 which was initiated by way of a petition filed by Mr Ross Free under Division 1 of Part XXII of the Electoral Act The Free v Kelly decision resulted in the disqualification of Ms Jackie Kelly under section 44(iv) of the Constitution for holding an office of profit under the Crown at the time of her nomination

515 The history of the separation of powers between the Parliament and the Judiciary in relation to such matters begins with the commencement of the Commonwealth in 1901 when section 47 of the Constitution prevailed

Until the Parliament otherwise provides any question respecting the qualifications of a senator or of a member of the House of Representatives or respecting a vacancy in either House of the Parliament and any question of a disputed election to either House shall be determined by the House in which the question arises

516 The Parliament then otherwise provided in sections 192-206 of the Commonwealth Electoral Act 1902 to the effect that the validity of any disputed election or return was to be decided by the High Court sitting as the Court of Disputed Returns

517 Further in section 6 of the Commonwealth Electoral Act 1907 the Parliament provided that any question on the qualifications of Members of Parliament or on a vacancy in the Parliament could be referred to the Court by resolution of the House of the Parliament in which the question arose In 1918 these two Acts were consolidated into the Commonwealth Electoral Act 1918 and now appear as Divisions 1 and 2 of Part XXII of the Electoral Act

518 The most recent example of the referral by the Parliament of a question concerning the qualifications of a Member of Parliament is the case of Senator Robert Wood in 1988 when the Senate referred the question of his qualifications by way of Division 2 of Part XXII of the Electoral Act to the Court of Disputed Returns Senator Wood was subsequently found to be disqualified by section 163 of the Electoral Act because he was not an Australian citizen

519 During the course of the 1999 proceedings in the SueSharples petitions the matter of Mr Warren Entsch MP and his alleged disqualification under section 44(v) of the Constitution was raised in the Parliament On 10 June 1999 the Leader of the Opposition moved in the House of Representatives

That the following question be referred to the Court of Disputed Returns for determination pursuant to section 376 of the Commonwealth Electoral Act 1918 Whether the place of the honourable Member for Leichhardt (Mr Entsch) has become vacant pursuant to the provisions of section 44(v) of the Constitution

5110 In response the Attorney-General moved in the House of Representatives that the motion be amended to read as follows

That the House determines that the member for Leichhardt does not have any direct or indirect pecuniary interest with the Public Service of the Commonwealth within the meaning of section 44(v) of the Constitution by reason of any contract entered into by Cape York Concrete Pty Ltd since 3 October 1998 and the member for Leichhardt is therefore not incapable of sitting as a member of this House

5111 The amendment moved by the Attorney-General was resolved in the affirmative That is in the Entsch matter the House of Representatives resolved not to refer the question of the constitutional qualifications of the Member for Leichhardt to the Court of Disputed Returns for consideration but instead resolved itself that he was not so disqualified This action asserted the right of the Parliament to make determinations on the constitutional qualifications of its own members without the involvement of the Judiciary

5112 It could be suggested that such determinations about constitutional qualifications made on the numbers in the relevant House of the Parliament might not be entirely disinterested at a political level And it might appear that anyone other than a Member of Parliament who wishes to challenge the constitutional qualifications of a sitting Member is foreclosed from doing so by the time limitation in section 355(e) of the Electoral Act which provides that a petition must be filed with the High Court within 40 days of the return of the writ for the relevant election

5113 However in those circumstances where the elected Parliament has already formed and the petition filing period has passed the Common Informers (Parliamentary Disqualifications) Act 1975 enables any person to sue the High Court for the payment of $200 per day for the period during which a Member of Parliament sits while being disqualified after being served with the originating process and the sum of $200 only in respect of a past breach The Act restricts such suits to a period no earlier than 12 months before the day on which the suit is instituted In relation to the Entsch matter this would mean that for any common informers action to be instituted Mr Entsch must have been disqualified as alleged within the 12 months preceding the date on which the suit was filed

5114 The most significant issues arising from the related matters discussed above would appear to be twofold

(a) whether the Electoral Act should continue to provide that the constitutional qualifications of Members of Parliament can be disputed by way of petition from any elector or candidate to the Court of Disputed Returns within 40 day days of the return of the writ for the election

(b) whether in the absence of either a referral to the Court of Disputed Returns by the House affected or a petition to the Court within 40 days of the return of the writ for the election or a common informerrsquos suit the Parliament should retain its authority to decide on the constitutional qualifications of its own members

5115 These issues arise out of the dispute resolution scheme provided for in the Electoral Act by the Parliament in the early part of this century and have not before been given direct consideration by the JSCEM since the major amendments to the Electoral Act in 1983 However given that these questions also go to the separation of powers between the Parliament and Judiciary and may therefore require considered submissions from all interested parties the AEC makes the following recommendation

Recommendation 1 That the JSCEM seek a reference to inquire into the powers and functions of the Australian Electoral Commission as expressed in Part II of the Electoral Act and Part I of the Referendum Act and the powers and functions of the Court of Disputed Returns as expressed in Part XXII of the Electoral Act and in Part VIII of the Referendum Act

5116 The recommendation includes reference to the powers and functions of the AEC in the context of the issues raised in part 53 below

52 Constitutional Disqualifications

521 The decision of the High Court in the SueSharples petitions was that any candidate who is a subject or citizen of a foreign power such as the United Kingdom is disqualified at the time of nomination from election to the Parliament That is Ms Heather Hill was disqualified from being elected under section 44(i) of the Constitution

522 This decision was made by the majority members of the Court (Gleeson CJ Gaudron Gummow and Hayne JJ) after they had decided that the Court of Disputed Returns had jurisdiction to hear the petition The other members of the Court (McHugh Kirby and Callinan JJ) who decided that the Court of Disputed Returns had no jurisdiction to hear the petition were not required to form a view on the constitutional qualifications question

523 This decision of the High Court on the interpretation of section 44(i) of the Constitution represents a highly significant statement about the constitutional relationship between the United Kingdom and Australia and in particular makes it very clear that persons holding dual citizenship with the United Kingdom are as equally subject to the constitutional disqualification as persons holding dual citizenship with any other foreign power

524 This may not have been clearly apparent from Sykes v Cleary in 1992 for example where after finding that Mr Phil Cleary was disqualified under section 44(iv) of the Constitution the Court went on to apply section 44(i) of the Constitution to two other candidates Mr Kardamitsis (ALP) and Mr Delacretaz (Liberal Party) who held dual citizenship with Greece and Switzerland respectively and found that they would have also been disqualified Although the Court indicated that all ldquoreasonable stepsrdquo should be taken by candidates to divest themselves of dual citizenship a doubt may have remained after this case as to whether this rule applied equally to British subjects The judgment in the SueSharples petitions should now remove any such doubts

525 However in its publications provided to intending candidates since the 1992 Sykes v Cleary decision the AEC did not find it necessary to make any such distinctions between the United Kingdom and other foreign powers in warning intending candidates to take reasonable steps to divest themselves of dual citizenship before nomination

526 For example on 17 July 1999 some three months before the 1998 federal election the AEC published Electoral Backgrounder No 4 entitled ldquoCandidate Disqualifications Section 44 of the Constitutionrdquo which provided a detailed discussion of the constitutional disqualifications for candidates at federal elections The AEC included information on how British subjects could divest themselves of dual citizenship in paragraph 27 This Backgrounder was made available to the public in hard copy from all AEC offices on the AEC Internet site (wwwaecgovau) and was provided to all candidates as part of the AEC ldquoCandidates Information Kitrdquo

4414 In relation to the third question in the Case Stated ldquoWas the first respondent duly elected at the electionrdquo there was common ground between the parties that if the Court found that at the date of her nomination Ms Hill was incapable of being chosen as a Senator by reason of her being a subject or citizen of a foreign power then it must follow that the first respondent was not duly elected at the election

4415 In relation to the fourth question in the Case Stated ldquoIf the first respondent was not duly elected was the election absolutely voidrdquo the parties in Sue v Hill agreed with the submission by the Solicitor-General for the Commonwealth that this question should be answered in the negative that is the election should not be declared absolutely void and a recount would be the appropriate remedy However the second petitioner Mr Sharples submitted that the question should be answered in the positive and a ldquowhole new electionrdquo should be conducted

4416 In relation to the fifth question in the Case Stated ldquoIf the election should not be declared void absolutely should the second respondent conduct a recount of the ballot papers cast for the purpose of determining the candidate entitled to be declared electedrdquo Counsel for the AEC submitted that a recount of the ballot papers for the position of Ms Hill would be the most appropriate remedy per In re Wood (1988) 167 CLR 145 Counsel for the petitioner Mr Sue Counsel for the first respondent Ms Hill and the Solicitor-General for the Commonwealth agreed with the submissions of the AEC

4417 In response to questions from the Bench Counsel for the AEC further submitted that it was highly probable that a member of the same political party as Ms Hill would be elected in her place on a recount of the ballot papers That is a recount would probably elect Mr Len Harris of One Nation in place of Ms Hill of One Nation because around 99 of electors who voted 1 for Ms Hill voted 2 for Mr Harris the second candidate on the One Nation group voting ticket Nevertheless until the recount was actually conducted this remained an hypothetical proposition

4418 In opposition to the submissions of the AEC the second petitioner Mr Sharples submitted that the Court could not be absolutely confident that the votersrsquo original intentions would be reflected by a recount given the distribution of first preferences for Ms Hill above and below the line on the ballot papers He referred also to the fact that Ms Hill was elected third in a field of six whilst in the precedent case In re Wood Mr Wood was elected last in a field of twelve He submitted that a fresh election was therefore the most appropriate remedy The Court then ordered Counsel for the AEC to provide further written submissions on the different consequences that might flow from the different order in which Mr Wood was elected in 1988 and Ms Hill in 1998

4419 The further written submissions were filed by the AEC on 18 May 1999 and showed that in its amicus role the AEC had given early consideration as to whether the election of other candidates would be disturbed by a recount if Ms Hill were to be disqualified and had concluded that this was so unlikely that their involvement in the proceedings need not be suggested to the Court The AEC further submitted that the different order of election in the Wood and the Hill cases would not change the fact that Mr Harris of One Nation would most probably be elected on a recount to replace Ms Hill In the event Mr Sharples chose to file further written submissions in response to the further written submissions of the AEC in which he endeavoured to distinguish In re Wood and further argued the case for a fresh election

4420 The sixth and final question in the Case Stated was ldquoSave for those otherwise dealt with by order who should pay the costs of the Stated Case and of the hearing of the Stated Case before the Full High Courtrdquo Counsel for the petitioner Mr Sue submitted that if the petition was successful the first respondent Ms Hill should pay his costs Counsel for the first respondent Ms Hill submitted that the Commonwealth should pay her costs because the questions raised were ldquoof great contemporary importancerdquo Alternatively it was submitted that if the petition failed then her costs should be paid by the petitioner The AEC submitted that no costs order should be made against the AEC and sought no costs order against the other parties

4421 The Solicitor-General for the Commonwealth submitted that no costs order should be made against the Commonwealth (under section 360(4) of the Electoral Act) and sought no costs order against the other parties The submission that the Commonwealth should not pay the costs of the other parties was not well received by the Bench Justice Callinan called it ldquoan extraordinary submissionrdquo

4422 Justice Gaudron cavilled at the submission by the Solicitor-General on the grounds that ldquoone half of the argument at least is concerned with matters relating to the effect of the Act ndash perhaps more than one halfrdquo and went on to say that ldquodeficienciesrdquo in the Act ldquohave been drawn to the attention of the Commonwealth in litigation for many yearsrdquo yet ldquopeople have been content more or less to leave [the Act] as it is with little thought as to how it operatesrdquo (transcript 12 May 1999 pp 65-66)

4423 The Decision in the Petitions On 23 June 1999 the Full Bench of the High Court handed down its judgment in Sue v Hill (1999) 73 ALJR 1016 and Sharples v Hill (B49 of 1998 High Court 23 June 1999 unreported) (Attachment 2) The majority of the Court (Gleeson CJ Gaudron Gummow and Hayne JJ) answered the questions in the Case Stated as follows

(a) Does s 354 of the Act validly confer upon the Court of Disputed Returns jurisdiction to determine the issues raised in the petition

Answer Yes

(b) Was the first respondent at the date of her nomination a subject or citizen of a foreign power within the meaning of s 44(i) of the Constitution

Answer Yes

(c) Was the first respondent duly elected at the election

Answer No

(d) If no to (c) was the election void absolutely

Answer No

(e) If no to (d) should the second respondent conduct a recount of the ballot papers cast for the election for the purposes of determining the candidate entitled to be elected to the place for which the first respondent was returned

Answer Inappropriate to answer

(f) Save for the otherwise dealt with by order who should pay the costs of the Stated Case and of the hearing of the Stated Case before the Full High Court

Answer The Commonwealth should pay the costs of the petitioner and the first respondent The second respondent should bear its own costs

4424 In delivering the judgment of the Court in the Sue v Hill and the Sharples v Hill petitions Chief Justice Gleeson made the following summary

In these two cases which were commenced in the Court of Disputed Returns the election of Mrs Hill as a Senator for the State of Queensland was challenged on the ground that at the date of her nomination she was incapable of being chosen as a Senator The specific ground of disqualification alleged was related to section 44(i) of the Constitution and was that at the date of nomination Mrs Hill was a subject or citizen of a foreign power namely the United Kingdom

The members of the Court who constituted the Court of Disputed Returns in each case raised certain questions for the decision of the full High Court

The first question was whether the Court of Disputed Returns has the jurisdiction invoked by the respective petitioners that is to say jurisdiction under Division 1 of Part XXII of the Commonwealth Electoral Act 1918 to consider a challenge to an election based solely on the ground of disqualification under section 44 of the Constitution Four members of the Court (Gleeson CJ Gaudron Gummow and Hayne JJ) have answered that question in the affirmative holding that there is jurisdiction Three members of the Court (McHugh Kirby Callinan JJ) have answered the question in the negative holding that jurisdiction does not exist

The three members of the Court who held that there was no jurisdiction of the kind invoked did not for that reason go on to answer the remaining questions

The four members of the Court who held that there is jurisdiction dealt with the remaining questions as follows

(a) The United Kingdom is a foreign power within the meaning of section 44 of the Constitution (b) At the time of her nomination Mrs Hill was a subject or citizen of a foreign power and was therefore incapable of being chosen as a Senator (c) Mrs Hill was therefore not duly elected (d) The consequence is not that the entire election of Senators for Queensland was void absolutely

Those four members of the Court were of the opinion that there should be a recount

As to the manner and extent of such recount these are matters upon which persons who have not been represented in the proceedings might wish to have the opportunity of being heard Accordingly each case has been remitted to the Court of Disputed Returns In the case of Sue v Hill the Court will sit at 930 am tomorrow for the purpose of considering the future course of the proceedings and if necessary giving directions

It was ordered that the Commonwealth should pay the costs of the petitioners and Mrs Hill

4425 The conclusion by the Court that other persons involved in the Queensland Senate election should be heard on the manner and extent of a recount was in response to the submissions made by Mr Sharples that the result of a recount as hypothesised by the AEC (the election of Mr Len Harris of One Nation to replace Ms Hill) might not transpire and the election or nonshyelection of the other candidates might be disturbed At paragraph 179 of the decision Justice Gaudron expanded on the doubts about the outcome of a recount that were raised in the Court by Mr Sharplesrsquo submissions

Although nothing was put to suggest that the true intention of the voters cannot be ascertained by a recount it emerged at the hearing that there was a real question as to the manner in which the recount should be conducted As formulated question (e) posits that a recount should be conducted only for the third Senate position However it is possible that a recount of all votes might have consequences for the fourth fifth and sixth Senators Those persons were not represented at the hearing It may be that that was because having regard to the terms of question (e) they were of the view that their positions would not be affected by a recount In the circumstances the appropriate course is to answer question (e) in each of the cases stated ldquoInappropriate to answerrdquo leaving the issue to be determined by a single Justice after hearing such submission if any as the persons returned as the fourth fifth and sixth Senators wish to make

45 Later Proceedings in the Petitions

451 On 24 June 1999 Chief Justice Gleeson sat as the Court of Disputed Returns to further progress the issues about the manner and extent of a recount The petitioner Mr Sue was represented by Ms Collins the first respondent Ms Hill was represented by Mr Templeton the second respondent the AEC was represented by Mr Swan of AGS and Mr Burmester QC appeared for the Attorney-General for the Commonwealth (Intervening) In addition two other persons involved in the election appeared Senator-elect Mason was represented by Mr Shannon and Senator OrsquoChee was represented by Mr Saunders

452 His Honour indicated from the outset that the purpose of the hearing was to address the concerns detailed in paragraph 179 of Justice Gaudronrsquos judgment namely that everyone who had a possible interest in a recount be given an opportunity to be heard His Honour identified three categories of such persons First Mr Len Harris the second candidate on the One Nation group voting ticket second the candidates elected in the fourth fifth and sixth positions for the Queensland Senate and third any non-elected candidate who might possibly replace any of the candidates elected to the fourth fifth and sixth positions Counsel for the AEC identified Ms Jann Piasecki Mr Drew Hutton Senator OrsquoChee and Mr John Bradford as persons who might have an interest within the categories set by the Chief Justice

453 His Honour then directed that a letter be sent immediately by the AEC to Senator-elect Ludwig Senator Woodley Mr John Bradford Mr Len Harris Ms Jann Piasecki and Mr Drew Hutton drawing their attention to the petition and the decision of the Court advising the intention to conduct a recount and that they had the opportunity to address the Court on the manner and extent of that recount

454 The Court was advised by Counsel for the AEC that if a recount was ordered by the Court it would be done by computer as permitted by section 273A of the Electoral Act and could be done the following day in approximately 45 minutes subject to the availability of scrutineers for the interested parties

455 Towards the end of these proceedings Counsel for the first respondent Ms Hill indicated that on the finding by the Full Bench that Ms Hill was not duly elected his client no longer had any interest in the proceedings He was therefore granted leave to be excused from further appearance and was not present for the costs orders at the end of these proceedings

456 On 29 June 1999 proceedings resumed before Chief Justice Gleeson by reference to a Notice of Motion of 28 June 1999 filed by the AEC setting out proposed orders and attaching a schedule for the conduct of a recount as follows

(1) A vote indicated on a ballot paper opposite the name of Heather Hill be counted to the candidate next in the order of the voterrsquos preference and the numbers indicating subsequent preferences be treated as altered accordingly (2) The further counting and recounting be conducted subject to direction (1) as nearly as practicable in accordance with the relevant provisions of section 273A of the Commonwealth Electoral Act 1918 (ldquothe Actrdquo) as if there were 6 vacancies to be filled (3) The further counting and recounting identify which candidate is entitled to be elected to the third place left unfilled by the ineligibility of Heather Hill (4) The further counting and recounting identify which (if any) candidate or candidates other than Mr Ludwig Mr Mason or Senator Woodley is or are entitled to be elected in the place of Mr Ludwig Mr Mason or Senator Woodley to any of the fourth fifth or sixth places to be filled (5) Notwithstanding direction (1) any ballot paper ruled to be informal during the 1998 scrutiny be treated as informal in the further counting and recounting (6) Notwithstanding direction (1) any ballot paper ruled to be formal during the 1998 scrutiny be treated as formal in the further counting and recounting except where a ballot paper is marked with a first preference for Heather Hill followed by the marking of a second preference for each of 2 or more other candidates (7) Notwithstanding direction (1) any ballot paper showing the same preference for Heather Hill and one or more other continuing candidates be set aside as exhausted in accordance with subsection 273(26) at the point in the scrutiny at which it would have been set aside had Heather Hill been a candidate eligible for election (8) Ballot papers marked with group voting ticket votes not be counted again but that the group voting tickets figures ascertained in the 1998 scrutiny be adjusted in accordance with direction (1) for the purposes of the further counting and recounting

457 The petitioner Mr Sue was represented by Ms Tait the second respondent the AEC was represented by Mr Swan of AGS and the Attorney-General for the Commonwealth (Intervening) was represented by Mr Burmester QC A number of other parties sought leave to intervene Mr Harris the second candidate on the One Nation group voting ticket was represented by Mr Gageler Senator Woodley was represented by Mr Davey Senator-elect Mason was represented by Mr Wood and Senator OrsquoChee was represented by Mr Applegarth An affidavit of 29 June of Mr McCarthy for the AEC testified to the notification of these parties by the AEC as ordered at the previous proceedings

458 An affidavit of 28 June of Mr Spelman of the AEC which was read to the Court by Mr Swan for the AEC advised the appropriateness of a full recount computerised in accordance with section 273A of the Electoral Act and in accordance with the directions in the schedule attached to the proposed orders and the inappropriateness of a recount that did not take into account all formal votes cast in the election

459 A full recount as proposed by the AEC was supported by Senator Woodley Senator-elect Mason Senator OrsquoChee Mr Harris and the Attorney-General on the basis that the recount would resolve whether any questions arose about disturbing the election or non-election of other candidates and that the conduct of the recount would not pre-empt any submissions they might make regarding the form of any resultant orders His Honour then ordered the AEC to conduct a full recount according to the schedule and report back to the Court with the results Costs in these proceedings were reserved

4510 On 2 July 1999 proceedings resumed before Chief Justice Gleeson with the same appearances as for 29 July with the exception that (now) Senator Mason and (now) Mr OrsquoChee were represented by Mr Wood An affidavit of 30 June of Mr Spelman of the AEC which was read to the Court by Mr Swan for the AEC advised the outcome of the full recount which was that Mr Harris achieved a quota in place of Ms Hill and the other candidates elected were unchanged from those elected at the original election

4511 With respect to costs in these later proceedings Mr Swan for the AEC and Mr Burmester for the Attorney-General submitted that each party should bear their own costs The other parties present (with the first respondent Ms Hill now absent) submitted that the Commonwealth should pay their costs under section 360(4) of the Electoral Act

4512 His Honour formally granted leave to intervene to Mr OrsquoChee Senator Mason Senator Woodley and Mr Harris and then ordered

1 That Heather Hill was not duly elected at the election held on 3 October 1998 2 That Mr Len Harris be declared duly elected as a Senator for the State of Queensland in the place for which Heather Hill was returned 3 That the second respondent and the Attorney-General for the Commonwealth each bear their own costs 4 That the Commonwealth pay the costs of the petitioner Senator Woodley Senator Mason Mr OrsquoChee and Mr Harris and their costs on previous occasions which have been reserved 5 Certify for counsel

4513 Lastly His Honour noted that Mr Sharples was not present and directed that his petition be re-listed before Justice Callinan to make such orders as he thought appropriate having regard to proceedings in the Sue petition

4514 On 29 July 1999 proceedings in the Sharples petition resumed before Justice Callinan The petitioner Mr Sharples represented himself the first respondent Ms Hill did not appear the second respondent the AEC was represented by Mr Swan of AGS the Attorney-General (Intervening) did not appear and on the question of costs the Commonwealth was represented by Mr Belcher of AGS (instructed by the AEC)

4515 His Honour ordered that

1 The petition be dismissed 2 The second respondent bear its own costs 3 The Commonwealth pay the costs of the petitioner of todayrsquos proceedings and of previous occasions on which costs were reserved

4516 The outcome on costs for both petitions was that under section 360(4) of the Electoral Act the Commonwealth was ordered to pay the costs on a partyparty basis of all the parties (except the Attorney-General and the AEC) in the proceedings extending over a period of some six months and involving numerous counsel and senior counsel Whilst the public interest in these petitions was properly served in all proceedings the award of costs against the Commonwealth will amount to a substantial cost to the public purse

4517 The AEC has now been advised by the Constitutional Unit of the Australian Government Solicitor and the Department of Finance and Administration that the costs awarded against the Commonwealth are the responsibility of the AEC There is no suggestion that the AEC was at fault in the conduct of the election or proceedings on the petitions

5 Implications of the Sue and Sharples Decisions

51 Jurisdiction of the Court of Disputed Returns

511 The majority judgment of the High Court (Gleeson CJ Gaudron Gummow and Hayne JJ) in the SueSharples petitions held that section 354 of the Electoral Act validly conferred jurisdiction upon the Court of Disputed Returns to determine the constitutional question raised in the petitions namely whether Ms Heather Hill was disqualified from being elected under section 44(i) of the Constitution

512 That is it has been concluded that the Court of Disputed Returns has jurisdiction to hear petitions raising questions of constitutional disqualifications filed under Division 1 of Part XXII of the Electoral Act The corollary is that the jurisdiction of the Court of Disputed Returns to hear questions of constitutional qualifications is not limited to matters referred to the Court by the Parliament under Division 2 of Part XXII the Electoral Act

513 The jurisdictional decision in the SueSharples petitions is in accordance with the conduct of proceedings in 1992 in Sykes v Cleary (1992) 176 CLR 77 which was initiated by way of a petition filed by Mr Ian Sykes under Division 1 of Part XXII of the Electoral Act The Sykes v Cleary decision resulted in the disqualification of Mr Phil Cleary under section 44(iv) of the Constitution for holding an office of profit under the Crown at the time of his nomination and a finding that other candidates in the by-election for the Division of Wills Mr Kardamitisis (ALP) and Mr Delacretaz (Liberal Party) were disqualified under section 44(i) of the Constitution for holding dual citizenship with Greece and Switzerland respectively

514 The jurisdictional decision in the SueSharples petitions is also in accordance with the conduct of proceedings in 1996 in Free v Kelly (1996) 70 ALJR 809 which was initiated by way of a petition filed by Mr Ross Free under Division 1 of Part XXII of the Electoral Act The Free v Kelly decision resulted in the disqualification of Ms Jackie Kelly under section 44(iv) of the Constitution for holding an office of profit under the Crown at the time of her nomination

515 The history of the separation of powers between the Parliament and the Judiciary in relation to such matters begins with the commencement of the Commonwealth in 1901 when section 47 of the Constitution prevailed

Until the Parliament otherwise provides any question respecting the qualifications of a senator or of a member of the House of Representatives or respecting a vacancy in either House of the Parliament and any question of a disputed election to either House shall be determined by the House in which the question arises

516 The Parliament then otherwise provided in sections 192-206 of the Commonwealth Electoral Act 1902 to the effect that the validity of any disputed election or return was to be decided by the High Court sitting as the Court of Disputed Returns

517 Further in section 6 of the Commonwealth Electoral Act 1907 the Parliament provided that any question on the qualifications of Members of Parliament or on a vacancy in the Parliament could be referred to the Court by resolution of the House of the Parliament in which the question arose In 1918 these two Acts were consolidated into the Commonwealth Electoral Act 1918 and now appear as Divisions 1 and 2 of Part XXII of the Electoral Act

518 The most recent example of the referral by the Parliament of a question concerning the qualifications of a Member of Parliament is the case of Senator Robert Wood in 1988 when the Senate referred the question of his qualifications by way of Division 2 of Part XXII of the Electoral Act to the Court of Disputed Returns Senator Wood was subsequently found to be disqualified by section 163 of the Electoral Act because he was not an Australian citizen

519 During the course of the 1999 proceedings in the SueSharples petitions the matter of Mr Warren Entsch MP and his alleged disqualification under section 44(v) of the Constitution was raised in the Parliament On 10 June 1999 the Leader of the Opposition moved in the House of Representatives

That the following question be referred to the Court of Disputed Returns for determination pursuant to section 376 of the Commonwealth Electoral Act 1918 Whether the place of the honourable Member for Leichhardt (Mr Entsch) has become vacant pursuant to the provisions of section 44(v) of the Constitution

5110 In response the Attorney-General moved in the House of Representatives that the motion be amended to read as follows

That the House determines that the member for Leichhardt does not have any direct or indirect pecuniary interest with the Public Service of the Commonwealth within the meaning of section 44(v) of the Constitution by reason of any contract entered into by Cape York Concrete Pty Ltd since 3 October 1998 and the member for Leichhardt is therefore not incapable of sitting as a member of this House

5111 The amendment moved by the Attorney-General was resolved in the affirmative That is in the Entsch matter the House of Representatives resolved not to refer the question of the constitutional qualifications of the Member for Leichhardt to the Court of Disputed Returns for consideration but instead resolved itself that he was not so disqualified This action asserted the right of the Parliament to make determinations on the constitutional qualifications of its own members without the involvement of the Judiciary

5112 It could be suggested that such determinations about constitutional qualifications made on the numbers in the relevant House of the Parliament might not be entirely disinterested at a political level And it might appear that anyone other than a Member of Parliament who wishes to challenge the constitutional qualifications of a sitting Member is foreclosed from doing so by the time limitation in section 355(e) of the Electoral Act which provides that a petition must be filed with the High Court within 40 days of the return of the writ for the relevant election

5113 However in those circumstances where the elected Parliament has already formed and the petition filing period has passed the Common Informers (Parliamentary Disqualifications) Act 1975 enables any person to sue the High Court for the payment of $200 per day for the period during which a Member of Parliament sits while being disqualified after being served with the originating process and the sum of $200 only in respect of a past breach The Act restricts such suits to a period no earlier than 12 months before the day on which the suit is instituted In relation to the Entsch matter this would mean that for any common informers action to be instituted Mr Entsch must have been disqualified as alleged within the 12 months preceding the date on which the suit was filed

5114 The most significant issues arising from the related matters discussed above would appear to be twofold

(a) whether the Electoral Act should continue to provide that the constitutional qualifications of Members of Parliament can be disputed by way of petition from any elector or candidate to the Court of Disputed Returns within 40 day days of the return of the writ for the election

(b) whether in the absence of either a referral to the Court of Disputed Returns by the House affected or a petition to the Court within 40 days of the return of the writ for the election or a common informerrsquos suit the Parliament should retain its authority to decide on the constitutional qualifications of its own members

5115 These issues arise out of the dispute resolution scheme provided for in the Electoral Act by the Parliament in the early part of this century and have not before been given direct consideration by the JSCEM since the major amendments to the Electoral Act in 1983 However given that these questions also go to the separation of powers between the Parliament and Judiciary and may therefore require considered submissions from all interested parties the AEC makes the following recommendation

Recommendation 1 That the JSCEM seek a reference to inquire into the powers and functions of the Australian Electoral Commission as expressed in Part II of the Electoral Act and Part I of the Referendum Act and the powers and functions of the Court of Disputed Returns as expressed in Part XXII of the Electoral Act and in Part VIII of the Referendum Act

5116 The recommendation includes reference to the powers and functions of the AEC in the context of the issues raised in part 53 below

52 Constitutional Disqualifications

521 The decision of the High Court in the SueSharples petitions was that any candidate who is a subject or citizen of a foreign power such as the United Kingdom is disqualified at the time of nomination from election to the Parliament That is Ms Heather Hill was disqualified from being elected under section 44(i) of the Constitution

522 This decision was made by the majority members of the Court (Gleeson CJ Gaudron Gummow and Hayne JJ) after they had decided that the Court of Disputed Returns had jurisdiction to hear the petition The other members of the Court (McHugh Kirby and Callinan JJ) who decided that the Court of Disputed Returns had no jurisdiction to hear the petition were not required to form a view on the constitutional qualifications question

523 This decision of the High Court on the interpretation of section 44(i) of the Constitution represents a highly significant statement about the constitutional relationship between the United Kingdom and Australia and in particular makes it very clear that persons holding dual citizenship with the United Kingdom are as equally subject to the constitutional disqualification as persons holding dual citizenship with any other foreign power

524 This may not have been clearly apparent from Sykes v Cleary in 1992 for example where after finding that Mr Phil Cleary was disqualified under section 44(iv) of the Constitution the Court went on to apply section 44(i) of the Constitution to two other candidates Mr Kardamitsis (ALP) and Mr Delacretaz (Liberal Party) who held dual citizenship with Greece and Switzerland respectively and found that they would have also been disqualified Although the Court indicated that all ldquoreasonable stepsrdquo should be taken by candidates to divest themselves of dual citizenship a doubt may have remained after this case as to whether this rule applied equally to British subjects The judgment in the SueSharples petitions should now remove any such doubts

525 However in its publications provided to intending candidates since the 1992 Sykes v Cleary decision the AEC did not find it necessary to make any such distinctions between the United Kingdom and other foreign powers in warning intending candidates to take reasonable steps to divest themselves of dual citizenship before nomination

526 For example on 17 July 1999 some three months before the 1998 federal election the AEC published Electoral Backgrounder No 4 entitled ldquoCandidate Disqualifications Section 44 of the Constitutionrdquo which provided a detailed discussion of the constitutional disqualifications for candidates at federal elections The AEC included information on how British subjects could divest themselves of dual citizenship in paragraph 27 This Backgrounder was made available to the public in hard copy from all AEC offices on the AEC Internet site (wwwaecgovau) and was provided to all candidates as part of the AEC ldquoCandidates Information Kitrdquo

4419 The further written submissions were filed by the AEC on 18 May 1999 and showed that in its amicus role the AEC had given early consideration as to whether the election of other candidates would be disturbed by a recount if Ms Hill were to be disqualified and had concluded that this was so unlikely that their involvement in the proceedings need not be suggested to the Court The AEC further submitted that the different order of election in the Wood and the Hill cases would not change the fact that Mr Harris of One Nation would most probably be elected on a recount to replace Ms Hill In the event Mr Sharples chose to file further written submissions in response to the further written submissions of the AEC in which he endeavoured to distinguish In re Wood and further argued the case for a fresh election

4420 The sixth and final question in the Case Stated was ldquoSave for those otherwise dealt with by order who should pay the costs of the Stated Case and of the hearing of the Stated Case before the Full High Courtrdquo Counsel for the petitioner Mr Sue submitted that if the petition was successful the first respondent Ms Hill should pay his costs Counsel for the first respondent Ms Hill submitted that the Commonwealth should pay her costs because the questions raised were ldquoof great contemporary importancerdquo Alternatively it was submitted that if the petition failed then her costs should be paid by the petitioner The AEC submitted that no costs order should be made against the AEC and sought no costs order against the other parties

4421 The Solicitor-General for the Commonwealth submitted that no costs order should be made against the Commonwealth (under section 360(4) of the Electoral Act) and sought no costs order against the other parties The submission that the Commonwealth should not pay the costs of the other parties was not well received by the Bench Justice Callinan called it ldquoan extraordinary submissionrdquo

4422 Justice Gaudron cavilled at the submission by the Solicitor-General on the grounds that ldquoone half of the argument at least is concerned with matters relating to the effect of the Act ndash perhaps more than one halfrdquo and went on to say that ldquodeficienciesrdquo in the Act ldquohave been drawn to the attention of the Commonwealth in litigation for many yearsrdquo yet ldquopeople have been content more or less to leave [the Act] as it is with little thought as to how it operatesrdquo (transcript 12 May 1999 pp 65-66)

4423 The Decision in the Petitions On 23 June 1999 the Full Bench of the High Court handed down its judgment in Sue v Hill (1999) 73 ALJR 1016 and Sharples v Hill (B49 of 1998 High Court 23 June 1999 unreported) (Attachment 2) The majority of the Court (Gleeson CJ Gaudron Gummow and Hayne JJ) answered the questions in the Case Stated as follows

(a) Does s 354 of the Act validly confer upon the Court of Disputed Returns jurisdiction to determine the issues raised in the petition

Answer Yes

(b) Was the first respondent at the date of her nomination a subject or citizen of a foreign power within the meaning of s 44(i) of the Constitution

Answer Yes

(c) Was the first respondent duly elected at the election

Answer No

(d) If no to (c) was the election void absolutely

Answer No

(e) If no to (d) should the second respondent conduct a recount of the ballot papers cast for the election for the purposes of determining the candidate entitled to be elected to the place for which the first respondent was returned

Answer Inappropriate to answer

(f) Save for the otherwise dealt with by order who should pay the costs of the Stated Case and of the hearing of the Stated Case before the Full High Court

Answer The Commonwealth should pay the costs of the petitioner and the first respondent The second respondent should bear its own costs

4424 In delivering the judgment of the Court in the Sue v Hill and the Sharples v Hill petitions Chief Justice Gleeson made the following summary

In these two cases which were commenced in the Court of Disputed Returns the election of Mrs Hill as a Senator for the State of Queensland was challenged on the ground that at the date of her nomination she was incapable of being chosen as a Senator The specific ground of disqualification alleged was related to section 44(i) of the Constitution and was that at the date of nomination Mrs Hill was a subject or citizen of a foreign power namely the United Kingdom

The members of the Court who constituted the Court of Disputed Returns in each case raised certain questions for the decision of the full High Court

The first question was whether the Court of Disputed Returns has the jurisdiction invoked by the respective petitioners that is to say jurisdiction under Division 1 of Part XXII of the Commonwealth Electoral Act 1918 to consider a challenge to an election based solely on the ground of disqualification under section 44 of the Constitution Four members of the Court (Gleeson CJ Gaudron Gummow and Hayne JJ) have answered that question in the affirmative holding that there is jurisdiction Three members of the Court (McHugh Kirby Callinan JJ) have answered the question in the negative holding that jurisdiction does not exist

The three members of the Court who held that there was no jurisdiction of the kind invoked did not for that reason go on to answer the remaining questions

The four members of the Court who held that there is jurisdiction dealt with the remaining questions as follows

(a) The United Kingdom is a foreign power within the meaning of section 44 of the Constitution (b) At the time of her nomination Mrs Hill was a subject or citizen of a foreign power and was therefore incapable of being chosen as a Senator (c) Mrs Hill was therefore not duly elected (d) The consequence is not that the entire election of Senators for Queensland was void absolutely

Those four members of the Court were of the opinion that there should be a recount

As to the manner and extent of such recount these are matters upon which persons who have not been represented in the proceedings might wish to have the opportunity of being heard Accordingly each case has been remitted to the Court of Disputed Returns In the case of Sue v Hill the Court will sit at 930 am tomorrow for the purpose of considering the future course of the proceedings and if necessary giving directions

It was ordered that the Commonwealth should pay the costs of the petitioners and Mrs Hill

4425 The conclusion by the Court that other persons involved in the Queensland Senate election should be heard on the manner and extent of a recount was in response to the submissions made by Mr Sharples that the result of a recount as hypothesised by the AEC (the election of Mr Len Harris of One Nation to replace Ms Hill) might not transpire and the election or nonshyelection of the other candidates might be disturbed At paragraph 179 of the decision Justice Gaudron expanded on the doubts about the outcome of a recount that were raised in the Court by Mr Sharplesrsquo submissions

Although nothing was put to suggest that the true intention of the voters cannot be ascertained by a recount it emerged at the hearing that there was a real question as to the manner in which the recount should be conducted As formulated question (e) posits that a recount should be conducted only for the third Senate position However it is possible that a recount of all votes might have consequences for the fourth fifth and sixth Senators Those persons were not represented at the hearing It may be that that was because having regard to the terms of question (e) they were of the view that their positions would not be affected by a recount In the circumstances the appropriate course is to answer question (e) in each of the cases stated ldquoInappropriate to answerrdquo leaving the issue to be determined by a single Justice after hearing such submission if any as the persons returned as the fourth fifth and sixth Senators wish to make

45 Later Proceedings in the Petitions

451 On 24 June 1999 Chief Justice Gleeson sat as the Court of Disputed Returns to further progress the issues about the manner and extent of a recount The petitioner Mr Sue was represented by Ms Collins the first respondent Ms Hill was represented by Mr Templeton the second respondent the AEC was represented by Mr Swan of AGS and Mr Burmester QC appeared for the Attorney-General for the Commonwealth (Intervening) In addition two other persons involved in the election appeared Senator-elect Mason was represented by Mr Shannon and Senator OrsquoChee was represented by Mr Saunders

452 His Honour indicated from the outset that the purpose of the hearing was to address the concerns detailed in paragraph 179 of Justice Gaudronrsquos judgment namely that everyone who had a possible interest in a recount be given an opportunity to be heard His Honour identified three categories of such persons First Mr Len Harris the second candidate on the One Nation group voting ticket second the candidates elected in the fourth fifth and sixth positions for the Queensland Senate and third any non-elected candidate who might possibly replace any of the candidates elected to the fourth fifth and sixth positions Counsel for the AEC identified Ms Jann Piasecki Mr Drew Hutton Senator OrsquoChee and Mr John Bradford as persons who might have an interest within the categories set by the Chief Justice

453 His Honour then directed that a letter be sent immediately by the AEC to Senator-elect Ludwig Senator Woodley Mr John Bradford Mr Len Harris Ms Jann Piasecki and Mr Drew Hutton drawing their attention to the petition and the decision of the Court advising the intention to conduct a recount and that they had the opportunity to address the Court on the manner and extent of that recount

454 The Court was advised by Counsel for the AEC that if a recount was ordered by the Court it would be done by computer as permitted by section 273A of the Electoral Act and could be done the following day in approximately 45 minutes subject to the availability of scrutineers for the interested parties

455 Towards the end of these proceedings Counsel for the first respondent Ms Hill indicated that on the finding by the Full Bench that Ms Hill was not duly elected his client no longer had any interest in the proceedings He was therefore granted leave to be excused from further appearance and was not present for the costs orders at the end of these proceedings

456 On 29 June 1999 proceedings resumed before Chief Justice Gleeson by reference to a Notice of Motion of 28 June 1999 filed by the AEC setting out proposed orders and attaching a schedule for the conduct of a recount as follows

(1) A vote indicated on a ballot paper opposite the name of Heather Hill be counted to the candidate next in the order of the voterrsquos preference and the numbers indicating subsequent preferences be treated as altered accordingly (2) The further counting and recounting be conducted subject to direction (1) as nearly as practicable in accordance with the relevant provisions of section 273A of the Commonwealth Electoral Act 1918 (ldquothe Actrdquo) as if there were 6 vacancies to be filled (3) The further counting and recounting identify which candidate is entitled to be elected to the third place left unfilled by the ineligibility of Heather Hill (4) The further counting and recounting identify which (if any) candidate or candidates other than Mr Ludwig Mr Mason or Senator Woodley is or are entitled to be elected in the place of Mr Ludwig Mr Mason or Senator Woodley to any of the fourth fifth or sixth places to be filled (5) Notwithstanding direction (1) any ballot paper ruled to be informal during the 1998 scrutiny be treated as informal in the further counting and recounting (6) Notwithstanding direction (1) any ballot paper ruled to be formal during the 1998 scrutiny be treated as formal in the further counting and recounting except where a ballot paper is marked with a first preference for Heather Hill followed by the marking of a second preference for each of 2 or more other candidates (7) Notwithstanding direction (1) any ballot paper showing the same preference for Heather Hill and one or more other continuing candidates be set aside as exhausted in accordance with subsection 273(26) at the point in the scrutiny at which it would have been set aside had Heather Hill been a candidate eligible for election (8) Ballot papers marked with group voting ticket votes not be counted again but that the group voting tickets figures ascertained in the 1998 scrutiny be adjusted in accordance with direction (1) for the purposes of the further counting and recounting

457 The petitioner Mr Sue was represented by Ms Tait the second respondent the AEC was represented by Mr Swan of AGS and the Attorney-General for the Commonwealth (Intervening) was represented by Mr Burmester QC A number of other parties sought leave to intervene Mr Harris the second candidate on the One Nation group voting ticket was represented by Mr Gageler Senator Woodley was represented by Mr Davey Senator-elect Mason was represented by Mr Wood and Senator OrsquoChee was represented by Mr Applegarth An affidavit of 29 June of Mr McCarthy for the AEC testified to the notification of these parties by the AEC as ordered at the previous proceedings

458 An affidavit of 28 June of Mr Spelman of the AEC which was read to the Court by Mr Swan for the AEC advised the appropriateness of a full recount computerised in accordance with section 273A of the Electoral Act and in accordance with the directions in the schedule attached to the proposed orders and the inappropriateness of a recount that did not take into account all formal votes cast in the election

459 A full recount as proposed by the AEC was supported by Senator Woodley Senator-elect Mason Senator OrsquoChee Mr Harris and the Attorney-General on the basis that the recount would resolve whether any questions arose about disturbing the election or non-election of other candidates and that the conduct of the recount would not pre-empt any submissions they might make regarding the form of any resultant orders His Honour then ordered the AEC to conduct a full recount according to the schedule and report back to the Court with the results Costs in these proceedings were reserved

4510 On 2 July 1999 proceedings resumed before Chief Justice Gleeson with the same appearances as for 29 July with the exception that (now) Senator Mason and (now) Mr OrsquoChee were represented by Mr Wood An affidavit of 30 June of Mr Spelman of the AEC which was read to the Court by Mr Swan for the AEC advised the outcome of the full recount which was that Mr Harris achieved a quota in place of Ms Hill and the other candidates elected were unchanged from those elected at the original election

4511 With respect to costs in these later proceedings Mr Swan for the AEC and Mr Burmester for the Attorney-General submitted that each party should bear their own costs The other parties present (with the first respondent Ms Hill now absent) submitted that the Commonwealth should pay their costs under section 360(4) of the Electoral Act

4512 His Honour formally granted leave to intervene to Mr OrsquoChee Senator Mason Senator Woodley and Mr Harris and then ordered

1 That Heather Hill was not duly elected at the election held on 3 October 1998 2 That Mr Len Harris be declared duly elected as a Senator for the State of Queensland in the place for which Heather Hill was returned 3 That the second respondent and the Attorney-General for the Commonwealth each bear their own costs 4 That the Commonwealth pay the costs of the petitioner Senator Woodley Senator Mason Mr OrsquoChee and Mr Harris and their costs on previous occasions which have been reserved 5 Certify for counsel

4513 Lastly His Honour noted that Mr Sharples was not present and directed that his petition be re-listed before Justice Callinan to make such orders as he thought appropriate having regard to proceedings in the Sue petition

4514 On 29 July 1999 proceedings in the Sharples petition resumed before Justice Callinan The petitioner Mr Sharples represented himself the first respondent Ms Hill did not appear the second respondent the AEC was represented by Mr Swan of AGS the Attorney-General (Intervening) did not appear and on the question of costs the Commonwealth was represented by Mr Belcher of AGS (instructed by the AEC)

4515 His Honour ordered that

1 The petition be dismissed 2 The second respondent bear its own costs 3 The Commonwealth pay the costs of the petitioner of todayrsquos proceedings and of previous occasions on which costs were reserved

4516 The outcome on costs for both petitions was that under section 360(4) of the Electoral Act the Commonwealth was ordered to pay the costs on a partyparty basis of all the parties (except the Attorney-General and the AEC) in the proceedings extending over a period of some six months and involving numerous counsel and senior counsel Whilst the public interest in these petitions was properly served in all proceedings the award of costs against the Commonwealth will amount to a substantial cost to the public purse

4517 The AEC has now been advised by the Constitutional Unit of the Australian Government Solicitor and the Department of Finance and Administration that the costs awarded against the Commonwealth are the responsibility of the AEC There is no suggestion that the AEC was at fault in the conduct of the election or proceedings on the petitions

5 Implications of the Sue and Sharples Decisions

51 Jurisdiction of the Court of Disputed Returns

511 The majority judgment of the High Court (Gleeson CJ Gaudron Gummow and Hayne JJ) in the SueSharples petitions held that section 354 of the Electoral Act validly conferred jurisdiction upon the Court of Disputed Returns to determine the constitutional question raised in the petitions namely whether Ms Heather Hill was disqualified from being elected under section 44(i) of the Constitution

512 That is it has been concluded that the Court of Disputed Returns has jurisdiction to hear petitions raising questions of constitutional disqualifications filed under Division 1 of Part XXII of the Electoral Act The corollary is that the jurisdiction of the Court of Disputed Returns to hear questions of constitutional qualifications is not limited to matters referred to the Court by the Parliament under Division 2 of Part XXII the Electoral Act

513 The jurisdictional decision in the SueSharples petitions is in accordance with the conduct of proceedings in 1992 in Sykes v Cleary (1992) 176 CLR 77 which was initiated by way of a petition filed by Mr Ian Sykes under Division 1 of Part XXII of the Electoral Act The Sykes v Cleary decision resulted in the disqualification of Mr Phil Cleary under section 44(iv) of the Constitution for holding an office of profit under the Crown at the time of his nomination and a finding that other candidates in the by-election for the Division of Wills Mr Kardamitisis (ALP) and Mr Delacretaz (Liberal Party) were disqualified under section 44(i) of the Constitution for holding dual citizenship with Greece and Switzerland respectively

514 The jurisdictional decision in the SueSharples petitions is also in accordance with the conduct of proceedings in 1996 in Free v Kelly (1996) 70 ALJR 809 which was initiated by way of a petition filed by Mr Ross Free under Division 1 of Part XXII of the Electoral Act The Free v Kelly decision resulted in the disqualification of Ms Jackie Kelly under section 44(iv) of the Constitution for holding an office of profit under the Crown at the time of her nomination

515 The history of the separation of powers between the Parliament and the Judiciary in relation to such matters begins with the commencement of the Commonwealth in 1901 when section 47 of the Constitution prevailed

Until the Parliament otherwise provides any question respecting the qualifications of a senator or of a member of the House of Representatives or respecting a vacancy in either House of the Parliament and any question of a disputed election to either House shall be determined by the House in which the question arises

516 The Parliament then otherwise provided in sections 192-206 of the Commonwealth Electoral Act 1902 to the effect that the validity of any disputed election or return was to be decided by the High Court sitting as the Court of Disputed Returns

517 Further in section 6 of the Commonwealth Electoral Act 1907 the Parliament provided that any question on the qualifications of Members of Parliament or on a vacancy in the Parliament could be referred to the Court by resolution of the House of the Parliament in which the question arose In 1918 these two Acts were consolidated into the Commonwealth Electoral Act 1918 and now appear as Divisions 1 and 2 of Part XXII of the Electoral Act

518 The most recent example of the referral by the Parliament of a question concerning the qualifications of a Member of Parliament is the case of Senator Robert Wood in 1988 when the Senate referred the question of his qualifications by way of Division 2 of Part XXII of the Electoral Act to the Court of Disputed Returns Senator Wood was subsequently found to be disqualified by section 163 of the Electoral Act because he was not an Australian citizen

519 During the course of the 1999 proceedings in the SueSharples petitions the matter of Mr Warren Entsch MP and his alleged disqualification under section 44(v) of the Constitution was raised in the Parliament On 10 June 1999 the Leader of the Opposition moved in the House of Representatives

That the following question be referred to the Court of Disputed Returns for determination pursuant to section 376 of the Commonwealth Electoral Act 1918 Whether the place of the honourable Member for Leichhardt (Mr Entsch) has become vacant pursuant to the provisions of section 44(v) of the Constitution

5110 In response the Attorney-General moved in the House of Representatives that the motion be amended to read as follows

That the House determines that the member for Leichhardt does not have any direct or indirect pecuniary interest with the Public Service of the Commonwealth within the meaning of section 44(v) of the Constitution by reason of any contract entered into by Cape York Concrete Pty Ltd since 3 October 1998 and the member for Leichhardt is therefore not incapable of sitting as a member of this House

5111 The amendment moved by the Attorney-General was resolved in the affirmative That is in the Entsch matter the House of Representatives resolved not to refer the question of the constitutional qualifications of the Member for Leichhardt to the Court of Disputed Returns for consideration but instead resolved itself that he was not so disqualified This action asserted the right of the Parliament to make determinations on the constitutional qualifications of its own members without the involvement of the Judiciary

5112 It could be suggested that such determinations about constitutional qualifications made on the numbers in the relevant House of the Parliament might not be entirely disinterested at a political level And it might appear that anyone other than a Member of Parliament who wishes to challenge the constitutional qualifications of a sitting Member is foreclosed from doing so by the time limitation in section 355(e) of the Electoral Act which provides that a petition must be filed with the High Court within 40 days of the return of the writ for the relevant election

5113 However in those circumstances where the elected Parliament has already formed and the petition filing period has passed the Common Informers (Parliamentary Disqualifications) Act 1975 enables any person to sue the High Court for the payment of $200 per day for the period during which a Member of Parliament sits while being disqualified after being served with the originating process and the sum of $200 only in respect of a past breach The Act restricts such suits to a period no earlier than 12 months before the day on which the suit is instituted In relation to the Entsch matter this would mean that for any common informers action to be instituted Mr Entsch must have been disqualified as alleged within the 12 months preceding the date on which the suit was filed

5114 The most significant issues arising from the related matters discussed above would appear to be twofold

(a) whether the Electoral Act should continue to provide that the constitutional qualifications of Members of Parliament can be disputed by way of petition from any elector or candidate to the Court of Disputed Returns within 40 day days of the return of the writ for the election

(b) whether in the absence of either a referral to the Court of Disputed Returns by the House affected or a petition to the Court within 40 days of the return of the writ for the election or a common informerrsquos suit the Parliament should retain its authority to decide on the constitutional qualifications of its own members

5115 These issues arise out of the dispute resolution scheme provided for in the Electoral Act by the Parliament in the early part of this century and have not before been given direct consideration by the JSCEM since the major amendments to the Electoral Act in 1983 However given that these questions also go to the separation of powers between the Parliament and Judiciary and may therefore require considered submissions from all interested parties the AEC makes the following recommendation

Recommendation 1 That the JSCEM seek a reference to inquire into the powers and functions of the Australian Electoral Commission as expressed in Part II of the Electoral Act and Part I of the Referendum Act and the powers and functions of the Court of Disputed Returns as expressed in Part XXII of the Electoral Act and in Part VIII of the Referendum Act

5116 The recommendation includes reference to the powers and functions of the AEC in the context of the issues raised in part 53 below

52 Constitutional Disqualifications

521 The decision of the High Court in the SueSharples petitions was that any candidate who is a subject or citizen of a foreign power such as the United Kingdom is disqualified at the time of nomination from election to the Parliament That is Ms Heather Hill was disqualified from being elected under section 44(i) of the Constitution

522 This decision was made by the majority members of the Court (Gleeson CJ Gaudron Gummow and Hayne JJ) after they had decided that the Court of Disputed Returns had jurisdiction to hear the petition The other members of the Court (McHugh Kirby and Callinan JJ) who decided that the Court of Disputed Returns had no jurisdiction to hear the petition were not required to form a view on the constitutional qualifications question

523 This decision of the High Court on the interpretation of section 44(i) of the Constitution represents a highly significant statement about the constitutional relationship between the United Kingdom and Australia and in particular makes it very clear that persons holding dual citizenship with the United Kingdom are as equally subject to the constitutional disqualification as persons holding dual citizenship with any other foreign power

524 This may not have been clearly apparent from Sykes v Cleary in 1992 for example where after finding that Mr Phil Cleary was disqualified under section 44(iv) of the Constitution the Court went on to apply section 44(i) of the Constitution to two other candidates Mr Kardamitsis (ALP) and Mr Delacretaz (Liberal Party) who held dual citizenship with Greece and Switzerland respectively and found that they would have also been disqualified Although the Court indicated that all ldquoreasonable stepsrdquo should be taken by candidates to divest themselves of dual citizenship a doubt may have remained after this case as to whether this rule applied equally to British subjects The judgment in the SueSharples petitions should now remove any such doubts

525 However in its publications provided to intending candidates since the 1992 Sykes v Cleary decision the AEC did not find it necessary to make any such distinctions between the United Kingdom and other foreign powers in warning intending candidates to take reasonable steps to divest themselves of dual citizenship before nomination

526 For example on 17 July 1999 some three months before the 1998 federal election the AEC published Electoral Backgrounder No 4 entitled ldquoCandidate Disqualifications Section 44 of the Constitutionrdquo which provided a detailed discussion of the constitutional disqualifications for candidates at federal elections The AEC included information on how British subjects could divest themselves of dual citizenship in paragraph 27 This Backgrounder was made available to the public in hard copy from all AEC offices on the AEC Internet site (wwwaecgovau) and was provided to all candidates as part of the AEC ldquoCandidates Information Kitrdquo

(a) Does s 354 of the Act validly confer upon the Court of Disputed Returns jurisdiction to determine the issues raised in the petition

Answer Yes

(b) Was the first respondent at the date of her nomination a subject or citizen of a foreign power within the meaning of s 44(i) of the Constitution

Answer Yes

(c) Was the first respondent duly elected at the election

Answer No

(d) If no to (c) was the election void absolutely

Answer No

(e) If no to (d) should the second respondent conduct a recount of the ballot papers cast for the election for the purposes of determining the candidate entitled to be elected to the place for which the first respondent was returned

Answer Inappropriate to answer

(f) Save for the otherwise dealt with by order who should pay the costs of the Stated Case and of the hearing of the Stated Case before the Full High Court

Answer The Commonwealth should pay the costs of the petitioner and the first respondent The second respondent should bear its own costs

4424 In delivering the judgment of the Court in the Sue v Hill and the Sharples v Hill petitions Chief Justice Gleeson made the following summary

In these two cases which were commenced in the Court of Disputed Returns the election of Mrs Hill as a Senator for the State of Queensland was challenged on the ground that at the date of her nomination she was incapable of being chosen as a Senator The specific ground of disqualification alleged was related to section 44(i) of the Constitution and was that at the date of nomination Mrs Hill was a subject or citizen of a foreign power namely the United Kingdom

The members of the Court who constituted the Court of Disputed Returns in each case raised certain questions for the decision of the full High Court

The first question was whether the Court of Disputed Returns has the jurisdiction invoked by the respective petitioners that is to say jurisdiction under Division 1 of Part XXII of the Commonwealth Electoral Act 1918 to consider a challenge to an election based solely on the ground of disqualification under section 44 of the Constitution Four members of the Court (Gleeson CJ Gaudron Gummow and Hayne JJ) have answered that question in the affirmative holding that there is jurisdiction Three members of the Court (McHugh Kirby Callinan JJ) have answered the question in the negative holding that jurisdiction does not exist

The three members of the Court who held that there was no jurisdiction of the kind invoked did not for that reason go on to answer the remaining questions

The four members of the Court who held that there is jurisdiction dealt with the remaining questions as follows

(a) The United Kingdom is a foreign power within the meaning of section 44 of the Constitution (b) At the time of her nomination Mrs Hill was a subject or citizen of a foreign power and was therefore incapable of being chosen as a Senator (c) Mrs Hill was therefore not duly elected (d) The consequence is not that the entire election of Senators for Queensland was void absolutely

Those four members of the Court were of the opinion that there should be a recount

As to the manner and extent of such recount these are matters upon which persons who have not been represented in the proceedings might wish to have the opportunity of being heard Accordingly each case has been remitted to the Court of Disputed Returns In the case of Sue v Hill the Court will sit at 930 am tomorrow for the purpose of considering the future course of the proceedings and if necessary giving directions

It was ordered that the Commonwealth should pay the costs of the petitioners and Mrs Hill

4425 The conclusion by the Court that other persons involved in the Queensland Senate election should be heard on the manner and extent of a recount was in response to the submissions made by Mr Sharples that the result of a recount as hypothesised by the AEC (the election of Mr Len Harris of One Nation to replace Ms Hill) might not transpire and the election or nonshyelection of the other candidates might be disturbed At paragraph 179 of the decision Justice Gaudron expanded on the doubts about the outcome of a recount that were raised in the Court by Mr Sharplesrsquo submissions

Although nothing was put to suggest that the true intention of the voters cannot be ascertained by a recount it emerged at the hearing that there was a real question as to the manner in which the recount should be conducted As formulated question (e) posits that a recount should be conducted only for the third Senate position However it is possible that a recount of all votes might have consequences for the fourth fifth and sixth Senators Those persons were not represented at the hearing It may be that that was because having regard to the terms of question (e) they were of the view that their positions would not be affected by a recount In the circumstances the appropriate course is to answer question (e) in each of the cases stated ldquoInappropriate to answerrdquo leaving the issue to be determined by a single Justice after hearing such submission if any as the persons returned as the fourth fifth and sixth Senators wish to make

45 Later Proceedings in the Petitions

451 On 24 June 1999 Chief Justice Gleeson sat as the Court of Disputed Returns to further progress the issues about the manner and extent of a recount The petitioner Mr Sue was represented by Ms Collins the first respondent Ms Hill was represented by Mr Templeton the second respondent the AEC was represented by Mr Swan of AGS and Mr Burmester QC appeared for the Attorney-General for the Commonwealth (Intervening) In addition two other persons involved in the election appeared Senator-elect Mason was represented by Mr Shannon and Senator OrsquoChee was represented by Mr Saunders

452 His Honour indicated from the outset that the purpose of the hearing was to address the concerns detailed in paragraph 179 of Justice Gaudronrsquos judgment namely that everyone who had a possible interest in a recount be given an opportunity to be heard His Honour identified three categories of such persons First Mr Len Harris the second candidate on the One Nation group voting ticket second the candidates elected in the fourth fifth and sixth positions for the Queensland Senate and third any non-elected candidate who might possibly replace any of the candidates elected to the fourth fifth and sixth positions Counsel for the AEC identified Ms Jann Piasecki Mr Drew Hutton Senator OrsquoChee and Mr John Bradford as persons who might have an interest within the categories set by the Chief Justice

453 His Honour then directed that a letter be sent immediately by the AEC to Senator-elect Ludwig Senator Woodley Mr John Bradford Mr Len Harris Ms Jann Piasecki and Mr Drew Hutton drawing their attention to the petition and the decision of the Court advising the intention to conduct a recount and that they had the opportunity to address the Court on the manner and extent of that recount

454 The Court was advised by Counsel for the AEC that if a recount was ordered by the Court it would be done by computer as permitted by section 273A of the Electoral Act and could be done the following day in approximately 45 minutes subject to the availability of scrutineers for the interested parties

455 Towards the end of these proceedings Counsel for the first respondent Ms Hill indicated that on the finding by the Full Bench that Ms Hill was not duly elected his client no longer had any interest in the proceedings He was therefore granted leave to be excused from further appearance and was not present for the costs orders at the end of these proceedings

456 On 29 June 1999 proceedings resumed before Chief Justice Gleeson by reference to a Notice of Motion of 28 June 1999 filed by the AEC setting out proposed orders and attaching a schedule for the conduct of a recount as follows

(1) A vote indicated on a ballot paper opposite the name of Heather Hill be counted to the candidate next in the order of the voterrsquos preference and the numbers indicating subsequent preferences be treated as altered accordingly (2) The further counting and recounting be conducted subject to direction (1) as nearly as practicable in accordance with the relevant provisions of section 273A of the Commonwealth Electoral Act 1918 (ldquothe Actrdquo) as if there were 6 vacancies to be filled (3) The further counting and recounting identify which candidate is entitled to be elected to the third place left unfilled by the ineligibility of Heather Hill (4) The further counting and recounting identify which (if any) candidate or candidates other than Mr Ludwig Mr Mason or Senator Woodley is or are entitled to be elected in the place of Mr Ludwig Mr Mason or Senator Woodley to any of the fourth fifth or sixth places to be filled (5) Notwithstanding direction (1) any ballot paper ruled to be informal during the 1998 scrutiny be treated as informal in the further counting and recounting (6) Notwithstanding direction (1) any ballot paper ruled to be formal during the 1998 scrutiny be treated as formal in the further counting and recounting except where a ballot paper is marked with a first preference for Heather Hill followed by the marking of a second preference for each of 2 or more other candidates (7) Notwithstanding direction (1) any ballot paper showing the same preference for Heather Hill and one or more other continuing candidates be set aside as exhausted in accordance with subsection 273(26) at the point in the scrutiny at which it would have been set aside had Heather Hill been a candidate eligible for election (8) Ballot papers marked with group voting ticket votes not be counted again but that the group voting tickets figures ascertained in the 1998 scrutiny be adjusted in accordance with direction (1) for the purposes of the further counting and recounting

457 The petitioner Mr Sue was represented by Ms Tait the second respondent the AEC was represented by Mr Swan of AGS and the Attorney-General for the Commonwealth (Intervening) was represented by Mr Burmester QC A number of other parties sought leave to intervene Mr Harris the second candidate on the One Nation group voting ticket was represented by Mr Gageler Senator Woodley was represented by Mr Davey Senator-elect Mason was represented by Mr Wood and Senator OrsquoChee was represented by Mr Applegarth An affidavit of 29 June of Mr McCarthy for the AEC testified to the notification of these parties by the AEC as ordered at the previous proceedings

458 An affidavit of 28 June of Mr Spelman of the AEC which was read to the Court by Mr Swan for the AEC advised the appropriateness of a full recount computerised in accordance with section 273A of the Electoral Act and in accordance with the directions in the schedule attached to the proposed orders and the inappropriateness of a recount that did not take into account all formal votes cast in the election

459 A full recount as proposed by the AEC was supported by Senator Woodley Senator-elect Mason Senator OrsquoChee Mr Harris and the Attorney-General on the basis that the recount would resolve whether any questions arose about disturbing the election or non-election of other candidates and that the conduct of the recount would not pre-empt any submissions they might make regarding the form of any resultant orders His Honour then ordered the AEC to conduct a full recount according to the schedule and report back to the Court with the results Costs in these proceedings were reserved

4510 On 2 July 1999 proceedings resumed before Chief Justice Gleeson with the same appearances as for 29 July with the exception that (now) Senator Mason and (now) Mr OrsquoChee were represented by Mr Wood An affidavit of 30 June of Mr Spelman of the AEC which was read to the Court by Mr Swan for the AEC advised the outcome of the full recount which was that Mr Harris achieved a quota in place of Ms Hill and the other candidates elected were unchanged from those elected at the original election

4511 With respect to costs in these later proceedings Mr Swan for the AEC and Mr Burmester for the Attorney-General submitted that each party should bear their own costs The other parties present (with the first respondent Ms Hill now absent) submitted that the Commonwealth should pay their costs under section 360(4) of the Electoral Act

4512 His Honour formally granted leave to intervene to Mr OrsquoChee Senator Mason Senator Woodley and Mr Harris and then ordered

1 That Heather Hill was not duly elected at the election held on 3 October 1998 2 That Mr Len Harris be declared duly elected as a Senator for the State of Queensland in the place for which Heather Hill was returned 3 That the second respondent and the Attorney-General for the Commonwealth each bear their own costs 4 That the Commonwealth pay the costs of the petitioner Senator Woodley Senator Mason Mr OrsquoChee and Mr Harris and their costs on previous occasions which have been reserved 5 Certify for counsel

4513 Lastly His Honour noted that Mr Sharples was not present and directed that his petition be re-listed before Justice Callinan to make such orders as he thought appropriate having regard to proceedings in the Sue petition

4514 On 29 July 1999 proceedings in the Sharples petition resumed before Justice Callinan The petitioner Mr Sharples represented himself the first respondent Ms Hill did not appear the second respondent the AEC was represented by Mr Swan of AGS the Attorney-General (Intervening) did not appear and on the question of costs the Commonwealth was represented by Mr Belcher of AGS (instructed by the AEC)

4515 His Honour ordered that

1 The petition be dismissed 2 The second respondent bear its own costs 3 The Commonwealth pay the costs of the petitioner of todayrsquos proceedings and of previous occasions on which costs were reserved

4516 The outcome on costs for both petitions was that under section 360(4) of the Electoral Act the Commonwealth was ordered to pay the costs on a partyparty basis of all the parties (except the Attorney-General and the AEC) in the proceedings extending over a period of some six months and involving numerous counsel and senior counsel Whilst the public interest in these petitions was properly served in all proceedings the award of costs against the Commonwealth will amount to a substantial cost to the public purse

4517 The AEC has now been advised by the Constitutional Unit of the Australian Government Solicitor and the Department of Finance and Administration that the costs awarded against the Commonwealth are the responsibility of the AEC There is no suggestion that the AEC was at fault in the conduct of the election or proceedings on the petitions

5 Implications of the Sue and Sharples Decisions

51 Jurisdiction of the Court of Disputed Returns

511 The majority judgment of the High Court (Gleeson CJ Gaudron Gummow and Hayne JJ) in the SueSharples petitions held that section 354 of the Electoral Act validly conferred jurisdiction upon the Court of Disputed Returns to determine the constitutional question raised in the petitions namely whether Ms Heather Hill was disqualified from being elected under section 44(i) of the Constitution

512 That is it has been concluded that the Court of Disputed Returns has jurisdiction to hear petitions raising questions of constitutional disqualifications filed under Division 1 of Part XXII of the Electoral Act The corollary is that the jurisdiction of the Court of Disputed Returns to hear questions of constitutional qualifications is not limited to matters referred to the Court by the Parliament under Division 2 of Part XXII the Electoral Act

513 The jurisdictional decision in the SueSharples petitions is in accordance with the conduct of proceedings in 1992 in Sykes v Cleary (1992) 176 CLR 77 which was initiated by way of a petition filed by Mr Ian Sykes under Division 1 of Part XXII of the Electoral Act The Sykes v Cleary decision resulted in the disqualification of Mr Phil Cleary under section 44(iv) of the Constitution for holding an office of profit under the Crown at the time of his nomination and a finding that other candidates in the by-election for the Division of Wills Mr Kardamitisis (ALP) and Mr Delacretaz (Liberal Party) were disqualified under section 44(i) of the Constitution for holding dual citizenship with Greece and Switzerland respectively

514 The jurisdictional decision in the SueSharples petitions is also in accordance with the conduct of proceedings in 1996 in Free v Kelly (1996) 70 ALJR 809 which was initiated by way of a petition filed by Mr Ross Free under Division 1 of Part XXII of the Electoral Act The Free v Kelly decision resulted in the disqualification of Ms Jackie Kelly under section 44(iv) of the Constitution for holding an office of profit under the Crown at the time of her nomination

515 The history of the separation of powers between the Parliament and the Judiciary in relation to such matters begins with the commencement of the Commonwealth in 1901 when section 47 of the Constitution prevailed

Until the Parliament otherwise provides any question respecting the qualifications of a senator or of a member of the House of Representatives or respecting a vacancy in either House of the Parliament and any question of a disputed election to either House shall be determined by the House in which the question arises

516 The Parliament then otherwise provided in sections 192-206 of the Commonwealth Electoral Act 1902 to the effect that the validity of any disputed election or return was to be decided by the High Court sitting as the Court of Disputed Returns

517 Further in section 6 of the Commonwealth Electoral Act 1907 the Parliament provided that any question on the qualifications of Members of Parliament or on a vacancy in the Parliament could be referred to the Court by resolution of the House of the Parliament in which the question arose In 1918 these two Acts were consolidated into the Commonwealth Electoral Act 1918 and now appear as Divisions 1 and 2 of Part XXII of the Electoral Act

518 The most recent example of the referral by the Parliament of a question concerning the qualifications of a Member of Parliament is the case of Senator Robert Wood in 1988 when the Senate referred the question of his qualifications by way of Division 2 of Part XXII of the Electoral Act to the Court of Disputed Returns Senator Wood was subsequently found to be disqualified by section 163 of the Electoral Act because he was not an Australian citizen

519 During the course of the 1999 proceedings in the SueSharples petitions the matter of Mr Warren Entsch MP and his alleged disqualification under section 44(v) of the Constitution was raised in the Parliament On 10 June 1999 the Leader of the Opposition moved in the House of Representatives

That the following question be referred to the Court of Disputed Returns for determination pursuant to section 376 of the Commonwealth Electoral Act 1918 Whether the place of the honourable Member for Leichhardt (Mr Entsch) has become vacant pursuant to the provisions of section 44(v) of the Constitution

5110 In response the Attorney-General moved in the House of Representatives that the motion be amended to read as follows

That the House determines that the member for Leichhardt does not have any direct or indirect pecuniary interest with the Public Service of the Commonwealth within the meaning of section 44(v) of the Constitution by reason of any contract entered into by Cape York Concrete Pty Ltd since 3 October 1998 and the member for Leichhardt is therefore not incapable of sitting as a member of this House

5111 The amendment moved by the Attorney-General was resolved in the affirmative That is in the Entsch matter the House of Representatives resolved not to refer the question of the constitutional qualifications of the Member for Leichhardt to the Court of Disputed Returns for consideration but instead resolved itself that he was not so disqualified This action asserted the right of the Parliament to make determinations on the constitutional qualifications of its own members without the involvement of the Judiciary

5112 It could be suggested that such determinations about constitutional qualifications made on the numbers in the relevant House of the Parliament might not be entirely disinterested at a political level And it might appear that anyone other than a Member of Parliament who wishes to challenge the constitutional qualifications of a sitting Member is foreclosed from doing so by the time limitation in section 355(e) of the Electoral Act which provides that a petition must be filed with the High Court within 40 days of the return of the writ for the relevant election

5113 However in those circumstances where the elected Parliament has already formed and the petition filing period has passed the Common Informers (Parliamentary Disqualifications) Act 1975 enables any person to sue the High Court for the payment of $200 per day for the period during which a Member of Parliament sits while being disqualified after being served with the originating process and the sum of $200 only in respect of a past breach The Act restricts such suits to a period no earlier than 12 months before the day on which the suit is instituted In relation to the Entsch matter this would mean that for any common informers action to be instituted Mr Entsch must have been disqualified as alleged within the 12 months preceding the date on which the suit was filed

5114 The most significant issues arising from the related matters discussed above would appear to be twofold

(a) whether the Electoral Act should continue to provide that the constitutional qualifications of Members of Parliament can be disputed by way of petition from any elector or candidate to the Court of Disputed Returns within 40 day days of the return of the writ for the election

(b) whether in the absence of either a referral to the Court of Disputed Returns by the House affected or a petition to the Court within 40 days of the return of the writ for the election or a common informerrsquos suit the Parliament should retain its authority to decide on the constitutional qualifications of its own members

5115 These issues arise out of the dispute resolution scheme provided for in the Electoral Act by the Parliament in the early part of this century and have not before been given direct consideration by the JSCEM since the major amendments to the Electoral Act in 1983 However given that these questions also go to the separation of powers between the Parliament and Judiciary and may therefore require considered submissions from all interested parties the AEC makes the following recommendation

Recommendation 1 That the JSCEM seek a reference to inquire into the powers and functions of the Australian Electoral Commission as expressed in Part II of the Electoral Act and Part I of the Referendum Act and the powers and functions of the Court of Disputed Returns as expressed in Part XXII of the Electoral Act and in Part VIII of the Referendum Act

5116 The recommendation includes reference to the powers and functions of the AEC in the context of the issues raised in part 53 below

52 Constitutional Disqualifications

521 The decision of the High Court in the SueSharples petitions was that any candidate who is a subject or citizen of a foreign power such as the United Kingdom is disqualified at the time of nomination from election to the Parliament That is Ms Heather Hill was disqualified from being elected under section 44(i) of the Constitution

522 This decision was made by the majority members of the Court (Gleeson CJ Gaudron Gummow and Hayne JJ) after they had decided that the Court of Disputed Returns had jurisdiction to hear the petition The other members of the Court (McHugh Kirby and Callinan JJ) who decided that the Court of Disputed Returns had no jurisdiction to hear the petition were not required to form a view on the constitutional qualifications question

523 This decision of the High Court on the interpretation of section 44(i) of the Constitution represents a highly significant statement about the constitutional relationship between the United Kingdom and Australia and in particular makes it very clear that persons holding dual citizenship with the United Kingdom are as equally subject to the constitutional disqualification as persons holding dual citizenship with any other foreign power

524 This may not have been clearly apparent from Sykes v Cleary in 1992 for example where after finding that Mr Phil Cleary was disqualified under section 44(iv) of the Constitution the Court went on to apply section 44(i) of the Constitution to two other candidates Mr Kardamitsis (ALP) and Mr Delacretaz (Liberal Party) who held dual citizenship with Greece and Switzerland respectively and found that they would have also been disqualified Although the Court indicated that all ldquoreasonable stepsrdquo should be taken by candidates to divest themselves of dual citizenship a doubt may have remained after this case as to whether this rule applied equally to British subjects The judgment in the SueSharples petitions should now remove any such doubts

525 However in its publications provided to intending candidates since the 1992 Sykes v Cleary decision the AEC did not find it necessary to make any such distinctions between the United Kingdom and other foreign powers in warning intending candidates to take reasonable steps to divest themselves of dual citizenship before nomination

526 For example on 17 July 1999 some three months before the 1998 federal election the AEC published Electoral Backgrounder No 4 entitled ldquoCandidate Disqualifications Section 44 of the Constitutionrdquo which provided a detailed discussion of the constitutional disqualifications for candidates at federal elections The AEC included information on how British subjects could divest themselves of dual citizenship in paragraph 27 This Backgrounder was made available to the public in hard copy from all AEC offices on the AEC Internet site (wwwaecgovau) and was provided to all candidates as part of the AEC ldquoCandidates Information Kitrdquo

The three members of the Court who held that there was no jurisdiction of the kind invoked did not for that reason go on to answer the remaining questions

The four members of the Court who held that there is jurisdiction dealt with the remaining questions as follows

(a) The United Kingdom is a foreign power within the meaning of section 44 of the Constitution (b) At the time of her nomination Mrs Hill was a subject or citizen of a foreign power and was therefore incapable of being chosen as a Senator (c) Mrs Hill was therefore not duly elected (d) The consequence is not that the entire election of Senators for Queensland was void absolutely

Those four members of the Court were of the opinion that there should be a recount

As to the manner and extent of such recount these are matters upon which persons who have not been represented in the proceedings might wish to have the opportunity of being heard Accordingly each case has been remitted to the Court of Disputed Returns In the case of Sue v Hill the Court will sit at 930 am tomorrow for the purpose of considering the future course of the proceedings and if necessary giving directions

It was ordered that the Commonwealth should pay the costs of the petitioners and Mrs Hill

4425 The conclusion by the Court that other persons involved in the Queensland Senate election should be heard on the manner and extent of a recount was in response to the submissions made by Mr Sharples that the result of a recount as hypothesised by the AEC (the election of Mr Len Harris of One Nation to replace Ms Hill) might not transpire and the election or nonshyelection of the other candidates might be disturbed At paragraph 179 of the decision Justice Gaudron expanded on the doubts about the outcome of a recount that were raised in the Court by Mr Sharplesrsquo submissions

Although nothing was put to suggest that the true intention of the voters cannot be ascertained by a recount it emerged at the hearing that there was a real question as to the manner in which the recount should be conducted As formulated question (e) posits that a recount should be conducted only for the third Senate position However it is possible that a recount of all votes might have consequences for the fourth fifth and sixth Senators Those persons were not represented at the hearing It may be that that was because having regard to the terms of question (e) they were of the view that their positions would not be affected by a recount In the circumstances the appropriate course is to answer question (e) in each of the cases stated ldquoInappropriate to answerrdquo leaving the issue to be determined by a single Justice after hearing such submission if any as the persons returned as the fourth fifth and sixth Senators wish to make

45 Later Proceedings in the Petitions

451 On 24 June 1999 Chief Justice Gleeson sat as the Court of Disputed Returns to further progress the issues about the manner and extent of a recount The petitioner Mr Sue was represented by Ms Collins the first respondent Ms Hill was represented by Mr Templeton the second respondent the AEC was represented by Mr Swan of AGS and Mr Burmester QC appeared for the Attorney-General for the Commonwealth (Intervening) In addition two other persons involved in the election appeared Senator-elect Mason was represented by Mr Shannon and Senator OrsquoChee was represented by Mr Saunders

452 His Honour indicated from the outset that the purpose of the hearing was to address the concerns detailed in paragraph 179 of Justice Gaudronrsquos judgment namely that everyone who had a possible interest in a recount be given an opportunity to be heard His Honour identified three categories of such persons First Mr Len Harris the second candidate on the One Nation group voting ticket second the candidates elected in the fourth fifth and sixth positions for the Queensland Senate and third any non-elected candidate who might possibly replace any of the candidates elected to the fourth fifth and sixth positions Counsel for the AEC identified Ms Jann Piasecki Mr Drew Hutton Senator OrsquoChee and Mr John Bradford as persons who might have an interest within the categories set by the Chief Justice

453 His Honour then directed that a letter be sent immediately by the AEC to Senator-elect Ludwig Senator Woodley Mr John Bradford Mr Len Harris Ms Jann Piasecki and Mr Drew Hutton drawing their attention to the petition and the decision of the Court advising the intention to conduct a recount and that they had the opportunity to address the Court on the manner and extent of that recount

454 The Court was advised by Counsel for the AEC that if a recount was ordered by the Court it would be done by computer as permitted by section 273A of the Electoral Act and could be done the following day in approximately 45 minutes subject to the availability of scrutineers for the interested parties

455 Towards the end of these proceedings Counsel for the first respondent Ms Hill indicated that on the finding by the Full Bench that Ms Hill was not duly elected his client no longer had any interest in the proceedings He was therefore granted leave to be excused from further appearance and was not present for the costs orders at the end of these proceedings

456 On 29 June 1999 proceedings resumed before Chief Justice Gleeson by reference to a Notice of Motion of 28 June 1999 filed by the AEC setting out proposed orders and attaching a schedule for the conduct of a recount as follows

(1) A vote indicated on a ballot paper opposite the name of Heather Hill be counted to the candidate next in the order of the voterrsquos preference and the numbers indicating subsequent preferences be treated as altered accordingly (2) The further counting and recounting be conducted subject to direction (1) as nearly as practicable in accordance with the relevant provisions of section 273A of the Commonwealth Electoral Act 1918 (ldquothe Actrdquo) as if there were 6 vacancies to be filled (3) The further counting and recounting identify which candidate is entitled to be elected to the third place left unfilled by the ineligibility of Heather Hill (4) The further counting and recounting identify which (if any) candidate or candidates other than Mr Ludwig Mr Mason or Senator Woodley is or are entitled to be elected in the place of Mr Ludwig Mr Mason or Senator Woodley to any of the fourth fifth or sixth places to be filled (5) Notwithstanding direction (1) any ballot paper ruled to be informal during the 1998 scrutiny be treated as informal in the further counting and recounting (6) Notwithstanding direction (1) any ballot paper ruled to be formal during the 1998 scrutiny be treated as formal in the further counting and recounting except where a ballot paper is marked with a first preference for Heather Hill followed by the marking of a second preference for each of 2 or more other candidates (7) Notwithstanding direction (1) any ballot paper showing the same preference for Heather Hill and one or more other continuing candidates be set aside as exhausted in accordance with subsection 273(26) at the point in the scrutiny at which it would have been set aside had Heather Hill been a candidate eligible for election (8) Ballot papers marked with group voting ticket votes not be counted again but that the group voting tickets figures ascertained in the 1998 scrutiny be adjusted in accordance with direction (1) for the purposes of the further counting and recounting

457 The petitioner Mr Sue was represented by Ms Tait the second respondent the AEC was represented by Mr Swan of AGS and the Attorney-General for the Commonwealth (Intervening) was represented by Mr Burmester QC A number of other parties sought leave to intervene Mr Harris the second candidate on the One Nation group voting ticket was represented by Mr Gageler Senator Woodley was represented by Mr Davey Senator-elect Mason was represented by Mr Wood and Senator OrsquoChee was represented by Mr Applegarth An affidavit of 29 June of Mr McCarthy for the AEC testified to the notification of these parties by the AEC as ordered at the previous proceedings

458 An affidavit of 28 June of Mr Spelman of the AEC which was read to the Court by Mr Swan for the AEC advised the appropriateness of a full recount computerised in accordance with section 273A of the Electoral Act and in accordance with the directions in the schedule attached to the proposed orders and the inappropriateness of a recount that did not take into account all formal votes cast in the election

459 A full recount as proposed by the AEC was supported by Senator Woodley Senator-elect Mason Senator OrsquoChee Mr Harris and the Attorney-General on the basis that the recount would resolve whether any questions arose about disturbing the election or non-election of other candidates and that the conduct of the recount would not pre-empt any submissions they might make regarding the form of any resultant orders His Honour then ordered the AEC to conduct a full recount according to the schedule and report back to the Court with the results Costs in these proceedings were reserved

4510 On 2 July 1999 proceedings resumed before Chief Justice Gleeson with the same appearances as for 29 July with the exception that (now) Senator Mason and (now) Mr OrsquoChee were represented by Mr Wood An affidavit of 30 June of Mr Spelman of the AEC which was read to the Court by Mr Swan for the AEC advised the outcome of the full recount which was that Mr Harris achieved a quota in place of Ms Hill and the other candidates elected were unchanged from those elected at the original election

4511 With respect to costs in these later proceedings Mr Swan for the AEC and Mr Burmester for the Attorney-General submitted that each party should bear their own costs The other parties present (with the first respondent Ms Hill now absent) submitted that the Commonwealth should pay their costs under section 360(4) of the Electoral Act

4512 His Honour formally granted leave to intervene to Mr OrsquoChee Senator Mason Senator Woodley and Mr Harris and then ordered

1 That Heather Hill was not duly elected at the election held on 3 October 1998 2 That Mr Len Harris be declared duly elected as a Senator for the State of Queensland in the place for which Heather Hill was returned 3 That the second respondent and the Attorney-General for the Commonwealth each bear their own costs 4 That the Commonwealth pay the costs of the petitioner Senator Woodley Senator Mason Mr OrsquoChee and Mr Harris and their costs on previous occasions which have been reserved 5 Certify for counsel

4513 Lastly His Honour noted that Mr Sharples was not present and directed that his petition be re-listed before Justice Callinan to make such orders as he thought appropriate having regard to proceedings in the Sue petition

4514 On 29 July 1999 proceedings in the Sharples petition resumed before Justice Callinan The petitioner Mr Sharples represented himself the first respondent Ms Hill did not appear the second respondent the AEC was represented by Mr Swan of AGS the Attorney-General (Intervening) did not appear and on the question of costs the Commonwealth was represented by Mr Belcher of AGS (instructed by the AEC)

4515 His Honour ordered that

1 The petition be dismissed 2 The second respondent bear its own costs 3 The Commonwealth pay the costs of the petitioner of todayrsquos proceedings and of previous occasions on which costs were reserved

4516 The outcome on costs for both petitions was that under section 360(4) of the Electoral Act the Commonwealth was ordered to pay the costs on a partyparty basis of all the parties (except the Attorney-General and the AEC) in the proceedings extending over a period of some six months and involving numerous counsel and senior counsel Whilst the public interest in these petitions was properly served in all proceedings the award of costs against the Commonwealth will amount to a substantial cost to the public purse

4517 The AEC has now been advised by the Constitutional Unit of the Australian Government Solicitor and the Department of Finance and Administration that the costs awarded against the Commonwealth are the responsibility of the AEC There is no suggestion that the AEC was at fault in the conduct of the election or proceedings on the petitions

5 Implications of the Sue and Sharples Decisions

51 Jurisdiction of the Court of Disputed Returns

511 The majority judgment of the High Court (Gleeson CJ Gaudron Gummow and Hayne JJ) in the SueSharples petitions held that section 354 of the Electoral Act validly conferred jurisdiction upon the Court of Disputed Returns to determine the constitutional question raised in the petitions namely whether Ms Heather Hill was disqualified from being elected under section 44(i) of the Constitution

512 That is it has been concluded that the Court of Disputed Returns has jurisdiction to hear petitions raising questions of constitutional disqualifications filed under Division 1 of Part XXII of the Electoral Act The corollary is that the jurisdiction of the Court of Disputed Returns to hear questions of constitutional qualifications is not limited to matters referred to the Court by the Parliament under Division 2 of Part XXII the Electoral Act

513 The jurisdictional decision in the SueSharples petitions is in accordance with the conduct of proceedings in 1992 in Sykes v Cleary (1992) 176 CLR 77 which was initiated by way of a petition filed by Mr Ian Sykes under Division 1 of Part XXII of the Electoral Act The Sykes v Cleary decision resulted in the disqualification of Mr Phil Cleary under section 44(iv) of the Constitution for holding an office of profit under the Crown at the time of his nomination and a finding that other candidates in the by-election for the Division of Wills Mr Kardamitisis (ALP) and Mr Delacretaz (Liberal Party) were disqualified under section 44(i) of the Constitution for holding dual citizenship with Greece and Switzerland respectively

514 The jurisdictional decision in the SueSharples petitions is also in accordance with the conduct of proceedings in 1996 in Free v Kelly (1996) 70 ALJR 809 which was initiated by way of a petition filed by Mr Ross Free under Division 1 of Part XXII of the Electoral Act The Free v Kelly decision resulted in the disqualification of Ms Jackie Kelly under section 44(iv) of the Constitution for holding an office of profit under the Crown at the time of her nomination

515 The history of the separation of powers between the Parliament and the Judiciary in relation to such matters begins with the commencement of the Commonwealth in 1901 when section 47 of the Constitution prevailed

Until the Parliament otherwise provides any question respecting the qualifications of a senator or of a member of the House of Representatives or respecting a vacancy in either House of the Parliament and any question of a disputed election to either House shall be determined by the House in which the question arises

516 The Parliament then otherwise provided in sections 192-206 of the Commonwealth Electoral Act 1902 to the effect that the validity of any disputed election or return was to be decided by the High Court sitting as the Court of Disputed Returns

517 Further in section 6 of the Commonwealth Electoral Act 1907 the Parliament provided that any question on the qualifications of Members of Parliament or on a vacancy in the Parliament could be referred to the Court by resolution of the House of the Parliament in which the question arose In 1918 these two Acts were consolidated into the Commonwealth Electoral Act 1918 and now appear as Divisions 1 and 2 of Part XXII of the Electoral Act

518 The most recent example of the referral by the Parliament of a question concerning the qualifications of a Member of Parliament is the case of Senator Robert Wood in 1988 when the Senate referred the question of his qualifications by way of Division 2 of Part XXII of the Electoral Act to the Court of Disputed Returns Senator Wood was subsequently found to be disqualified by section 163 of the Electoral Act because he was not an Australian citizen

519 During the course of the 1999 proceedings in the SueSharples petitions the matter of Mr Warren Entsch MP and his alleged disqualification under section 44(v) of the Constitution was raised in the Parliament On 10 June 1999 the Leader of the Opposition moved in the House of Representatives

That the following question be referred to the Court of Disputed Returns for determination pursuant to section 376 of the Commonwealth Electoral Act 1918 Whether the place of the honourable Member for Leichhardt (Mr Entsch) has become vacant pursuant to the provisions of section 44(v) of the Constitution

5110 In response the Attorney-General moved in the House of Representatives that the motion be amended to read as follows

That the House determines that the member for Leichhardt does not have any direct or indirect pecuniary interest with the Public Service of the Commonwealth within the meaning of section 44(v) of the Constitution by reason of any contract entered into by Cape York Concrete Pty Ltd since 3 October 1998 and the member for Leichhardt is therefore not incapable of sitting as a member of this House

5111 The amendment moved by the Attorney-General was resolved in the affirmative That is in the Entsch matter the House of Representatives resolved not to refer the question of the constitutional qualifications of the Member for Leichhardt to the Court of Disputed Returns for consideration but instead resolved itself that he was not so disqualified This action asserted the right of the Parliament to make determinations on the constitutional qualifications of its own members without the involvement of the Judiciary

5112 It could be suggested that such determinations about constitutional qualifications made on the numbers in the relevant House of the Parliament might not be entirely disinterested at a political level And it might appear that anyone other than a Member of Parliament who wishes to challenge the constitutional qualifications of a sitting Member is foreclosed from doing so by the time limitation in section 355(e) of the Electoral Act which provides that a petition must be filed with the High Court within 40 days of the return of the writ for the relevant election

5113 However in those circumstances where the elected Parliament has already formed and the petition filing period has passed the Common Informers (Parliamentary Disqualifications) Act 1975 enables any person to sue the High Court for the payment of $200 per day for the period during which a Member of Parliament sits while being disqualified after being served with the originating process and the sum of $200 only in respect of a past breach The Act restricts such suits to a period no earlier than 12 months before the day on which the suit is instituted In relation to the Entsch matter this would mean that for any common informers action to be instituted Mr Entsch must have been disqualified as alleged within the 12 months preceding the date on which the suit was filed

5114 The most significant issues arising from the related matters discussed above would appear to be twofold

(a) whether the Electoral Act should continue to provide that the constitutional qualifications of Members of Parliament can be disputed by way of petition from any elector or candidate to the Court of Disputed Returns within 40 day days of the return of the writ for the election

(b) whether in the absence of either a referral to the Court of Disputed Returns by the House affected or a petition to the Court within 40 days of the return of the writ for the election or a common informerrsquos suit the Parliament should retain its authority to decide on the constitutional qualifications of its own members

5115 These issues arise out of the dispute resolution scheme provided for in the Electoral Act by the Parliament in the early part of this century and have not before been given direct consideration by the JSCEM since the major amendments to the Electoral Act in 1983 However given that these questions also go to the separation of powers between the Parliament and Judiciary and may therefore require considered submissions from all interested parties the AEC makes the following recommendation

Recommendation 1 That the JSCEM seek a reference to inquire into the powers and functions of the Australian Electoral Commission as expressed in Part II of the Electoral Act and Part I of the Referendum Act and the powers and functions of the Court of Disputed Returns as expressed in Part XXII of the Electoral Act and in Part VIII of the Referendum Act

5116 The recommendation includes reference to the powers and functions of the AEC in the context of the issues raised in part 53 below

52 Constitutional Disqualifications

521 The decision of the High Court in the SueSharples petitions was that any candidate who is a subject or citizen of a foreign power such as the United Kingdom is disqualified at the time of nomination from election to the Parliament That is Ms Heather Hill was disqualified from being elected under section 44(i) of the Constitution

522 This decision was made by the majority members of the Court (Gleeson CJ Gaudron Gummow and Hayne JJ) after they had decided that the Court of Disputed Returns had jurisdiction to hear the petition The other members of the Court (McHugh Kirby and Callinan JJ) who decided that the Court of Disputed Returns had no jurisdiction to hear the petition were not required to form a view on the constitutional qualifications question

523 This decision of the High Court on the interpretation of section 44(i) of the Constitution represents a highly significant statement about the constitutional relationship between the United Kingdom and Australia and in particular makes it very clear that persons holding dual citizenship with the United Kingdom are as equally subject to the constitutional disqualification as persons holding dual citizenship with any other foreign power

524 This may not have been clearly apparent from Sykes v Cleary in 1992 for example where after finding that Mr Phil Cleary was disqualified under section 44(iv) of the Constitution the Court went on to apply section 44(i) of the Constitution to two other candidates Mr Kardamitsis (ALP) and Mr Delacretaz (Liberal Party) who held dual citizenship with Greece and Switzerland respectively and found that they would have also been disqualified Although the Court indicated that all ldquoreasonable stepsrdquo should be taken by candidates to divest themselves of dual citizenship a doubt may have remained after this case as to whether this rule applied equally to British subjects The judgment in the SueSharples petitions should now remove any such doubts

525 However in its publications provided to intending candidates since the 1992 Sykes v Cleary decision the AEC did not find it necessary to make any such distinctions between the United Kingdom and other foreign powers in warning intending candidates to take reasonable steps to divest themselves of dual citizenship before nomination

526 For example on 17 July 1999 some three months before the 1998 federal election the AEC published Electoral Backgrounder No 4 entitled ldquoCandidate Disqualifications Section 44 of the Constitutionrdquo which provided a detailed discussion of the constitutional disqualifications for candidates at federal elections The AEC included information on how British subjects could divest themselves of dual citizenship in paragraph 27 This Backgrounder was made available to the public in hard copy from all AEC offices on the AEC Internet site (wwwaecgovau) and was provided to all candidates as part of the AEC ldquoCandidates Information Kitrdquo

45 Later Proceedings in the Petitions

451 On 24 June 1999 Chief Justice Gleeson sat as the Court of Disputed Returns to further progress the issues about the manner and extent of a recount The petitioner Mr Sue was represented by Ms Collins the first respondent Ms Hill was represented by Mr Templeton the second respondent the AEC was represented by Mr Swan of AGS and Mr Burmester QC appeared for the Attorney-General for the Commonwealth (Intervening) In addition two other persons involved in the election appeared Senator-elect Mason was represented by Mr Shannon and Senator OrsquoChee was represented by Mr Saunders

452 His Honour indicated from the outset that the purpose of the hearing was to address the concerns detailed in paragraph 179 of Justice Gaudronrsquos judgment namely that everyone who had a possible interest in a recount be given an opportunity to be heard His Honour identified three categories of such persons First Mr Len Harris the second candidate on the One Nation group voting ticket second the candidates elected in the fourth fifth and sixth positions for the Queensland Senate and third any non-elected candidate who might possibly replace any of the candidates elected to the fourth fifth and sixth positions Counsel for the AEC identified Ms Jann Piasecki Mr Drew Hutton Senator OrsquoChee and Mr John Bradford as persons who might have an interest within the categories set by the Chief Justice

453 His Honour then directed that a letter be sent immediately by the AEC to Senator-elect Ludwig Senator Woodley Mr John Bradford Mr Len Harris Ms Jann Piasecki and Mr Drew Hutton drawing their attention to the petition and the decision of the Court advising the intention to conduct a recount and that they had the opportunity to address the Court on the manner and extent of that recount

454 The Court was advised by Counsel for the AEC that if a recount was ordered by the Court it would be done by computer as permitted by section 273A of the Electoral Act and could be done the following day in approximately 45 minutes subject to the availability of scrutineers for the interested parties

455 Towards the end of these proceedings Counsel for the first respondent Ms Hill indicated that on the finding by the Full Bench that Ms Hill was not duly elected his client no longer had any interest in the proceedings He was therefore granted leave to be excused from further appearance and was not present for the costs orders at the end of these proceedings

456 On 29 June 1999 proceedings resumed before Chief Justice Gleeson by reference to a Notice of Motion of 28 June 1999 filed by the AEC setting out proposed orders and attaching a schedule for the conduct of a recount as follows

(1) A vote indicated on a ballot paper opposite the name of Heather Hill be counted to the candidate next in the order of the voterrsquos preference and the numbers indicating subsequent preferences be treated as altered accordingly (2) The further counting and recounting be conducted subject to direction (1) as nearly as practicable in accordance with the relevant provisions of section 273A of the Commonwealth Electoral Act 1918 (ldquothe Actrdquo) as if there were 6 vacancies to be filled (3) The further counting and recounting identify which candidate is entitled to be elected to the third place left unfilled by the ineligibility of Heather Hill (4) The further counting and recounting identify which (if any) candidate or candidates other than Mr Ludwig Mr Mason or Senator Woodley is or are entitled to be elected in the place of Mr Ludwig Mr Mason or Senator Woodley to any of the fourth fifth or sixth places to be filled (5) Notwithstanding direction (1) any ballot paper ruled to be informal during the 1998 scrutiny be treated as informal in the further counting and recounting (6) Notwithstanding direction (1) any ballot paper ruled to be formal during the 1998 scrutiny be treated as formal in the further counting and recounting except where a ballot paper is marked with a first preference for Heather Hill followed by the marking of a second preference for each of 2 or more other candidates (7) Notwithstanding direction (1) any ballot paper showing the same preference for Heather Hill and one or more other continuing candidates be set aside as exhausted in accordance with subsection 273(26) at the point in the scrutiny at which it would have been set aside had Heather Hill been a candidate eligible for election (8) Ballot papers marked with group voting ticket votes not be counted again but that the group voting tickets figures ascertained in the 1998 scrutiny be adjusted in accordance with direction (1) for the purposes of the further counting and recounting

457 The petitioner Mr Sue was represented by Ms Tait the second respondent the AEC was represented by Mr Swan of AGS and the Attorney-General for the Commonwealth (Intervening) was represented by Mr Burmester QC A number of other parties sought leave to intervene Mr Harris the second candidate on the One Nation group voting ticket was represented by Mr Gageler Senator Woodley was represented by Mr Davey Senator-elect Mason was represented by Mr Wood and Senator OrsquoChee was represented by Mr Applegarth An affidavit of 29 June of Mr McCarthy for the AEC testified to the notification of these parties by the AEC as ordered at the previous proceedings

458 An affidavit of 28 June of Mr Spelman of the AEC which was read to the Court by Mr Swan for the AEC advised the appropriateness of a full recount computerised in accordance with section 273A of the Electoral Act and in accordance with the directions in the schedule attached to the proposed orders and the inappropriateness of a recount that did not take into account all formal votes cast in the election

459 A full recount as proposed by the AEC was supported by Senator Woodley Senator-elect Mason Senator OrsquoChee Mr Harris and the Attorney-General on the basis that the recount would resolve whether any questions arose about disturbing the election or non-election of other candidates and that the conduct of the recount would not pre-empt any submissions they might make regarding the form of any resultant orders His Honour then ordered the AEC to conduct a full recount according to the schedule and report back to the Court with the results Costs in these proceedings were reserved

4510 On 2 July 1999 proceedings resumed before Chief Justice Gleeson with the same appearances as for 29 July with the exception that (now) Senator Mason and (now) Mr OrsquoChee were represented by Mr Wood An affidavit of 30 June of Mr Spelman of the AEC which was read to the Court by Mr Swan for the AEC advised the outcome of the full recount which was that Mr Harris achieved a quota in place of Ms Hill and the other candidates elected were unchanged from those elected at the original election

4511 With respect to costs in these later proceedings Mr Swan for the AEC and Mr Burmester for the Attorney-General submitted that each party should bear their own costs The other parties present (with the first respondent Ms Hill now absent) submitted that the Commonwealth should pay their costs under section 360(4) of the Electoral Act

4512 His Honour formally granted leave to intervene to Mr OrsquoChee Senator Mason Senator Woodley and Mr Harris and then ordered

1 That Heather Hill was not duly elected at the election held on 3 October 1998 2 That Mr Len Harris be declared duly elected as a Senator for the State of Queensland in the place for which Heather Hill was returned 3 That the second respondent and the Attorney-General for the Commonwealth each bear their own costs 4 That the Commonwealth pay the costs of the petitioner Senator Woodley Senator Mason Mr OrsquoChee and Mr Harris and their costs on previous occasions which have been reserved 5 Certify for counsel

4513 Lastly His Honour noted that Mr Sharples was not present and directed that his petition be re-listed before Justice Callinan to make such orders as he thought appropriate having regard to proceedings in the Sue petition

4514 On 29 July 1999 proceedings in the Sharples petition resumed before Justice Callinan The petitioner Mr Sharples represented himself the first respondent Ms Hill did not appear the second respondent the AEC was represented by Mr Swan of AGS the Attorney-General (Intervening) did not appear and on the question of costs the Commonwealth was represented by Mr Belcher of AGS (instructed by the AEC)

4515 His Honour ordered that

1 The petition be dismissed 2 The second respondent bear its own costs 3 The Commonwealth pay the costs of the petitioner of todayrsquos proceedings and of previous occasions on which costs were reserved

4516 The outcome on costs for both petitions was that under section 360(4) of the Electoral Act the Commonwealth was ordered to pay the costs on a partyparty basis of all the parties (except the Attorney-General and the AEC) in the proceedings extending over a period of some six months and involving numerous counsel and senior counsel Whilst the public interest in these petitions was properly served in all proceedings the award of costs against the Commonwealth will amount to a substantial cost to the public purse

4517 The AEC has now been advised by the Constitutional Unit of the Australian Government Solicitor and the Department of Finance and Administration that the costs awarded against the Commonwealth are the responsibility of the AEC There is no suggestion that the AEC was at fault in the conduct of the election or proceedings on the petitions

5 Implications of the Sue and Sharples Decisions

51 Jurisdiction of the Court of Disputed Returns

511 The majority judgment of the High Court (Gleeson CJ Gaudron Gummow and Hayne JJ) in the SueSharples petitions held that section 354 of the Electoral Act validly conferred jurisdiction upon the Court of Disputed Returns to determine the constitutional question raised in the petitions namely whether Ms Heather Hill was disqualified from being elected under section 44(i) of the Constitution

512 That is it has been concluded that the Court of Disputed Returns has jurisdiction to hear petitions raising questions of constitutional disqualifications filed under Division 1 of Part XXII of the Electoral Act The corollary is that the jurisdiction of the Court of Disputed Returns to hear questions of constitutional qualifications is not limited to matters referred to the Court by the Parliament under Division 2 of Part XXII the Electoral Act

513 The jurisdictional decision in the SueSharples petitions is in accordance with the conduct of proceedings in 1992 in Sykes v Cleary (1992) 176 CLR 77 which was initiated by way of a petition filed by Mr Ian Sykes under Division 1 of Part XXII of the Electoral Act The Sykes v Cleary decision resulted in the disqualification of Mr Phil Cleary under section 44(iv) of the Constitution for holding an office of profit under the Crown at the time of his nomination and a finding that other candidates in the by-election for the Division of Wills Mr Kardamitisis (ALP) and Mr Delacretaz (Liberal Party) were disqualified under section 44(i) of the Constitution for holding dual citizenship with Greece and Switzerland respectively

514 The jurisdictional decision in the SueSharples petitions is also in accordance with the conduct of proceedings in 1996 in Free v Kelly (1996) 70 ALJR 809 which was initiated by way of a petition filed by Mr Ross Free under Division 1 of Part XXII of the Electoral Act The Free v Kelly decision resulted in the disqualification of Ms Jackie Kelly under section 44(iv) of the Constitution for holding an office of profit under the Crown at the time of her nomination

515 The history of the separation of powers between the Parliament and the Judiciary in relation to such matters begins with the commencement of the Commonwealth in 1901 when section 47 of the Constitution prevailed

Until the Parliament otherwise provides any question respecting the qualifications of a senator or of a member of the House of Representatives or respecting a vacancy in either House of the Parliament and any question of a disputed election to either House shall be determined by the House in which the question arises

516 The Parliament then otherwise provided in sections 192-206 of the Commonwealth Electoral Act 1902 to the effect that the validity of any disputed election or return was to be decided by the High Court sitting as the Court of Disputed Returns

517 Further in section 6 of the Commonwealth Electoral Act 1907 the Parliament provided that any question on the qualifications of Members of Parliament or on a vacancy in the Parliament could be referred to the Court by resolution of the House of the Parliament in which the question arose In 1918 these two Acts were consolidated into the Commonwealth Electoral Act 1918 and now appear as Divisions 1 and 2 of Part XXII of the Electoral Act

518 The most recent example of the referral by the Parliament of a question concerning the qualifications of a Member of Parliament is the case of Senator Robert Wood in 1988 when the Senate referred the question of his qualifications by way of Division 2 of Part XXII of the Electoral Act to the Court of Disputed Returns Senator Wood was subsequently found to be disqualified by section 163 of the Electoral Act because he was not an Australian citizen

519 During the course of the 1999 proceedings in the SueSharples petitions the matter of Mr Warren Entsch MP and his alleged disqualification under section 44(v) of the Constitution was raised in the Parliament On 10 June 1999 the Leader of the Opposition moved in the House of Representatives

That the following question be referred to the Court of Disputed Returns for determination pursuant to section 376 of the Commonwealth Electoral Act 1918 Whether the place of the honourable Member for Leichhardt (Mr Entsch) has become vacant pursuant to the provisions of section 44(v) of the Constitution

5110 In response the Attorney-General moved in the House of Representatives that the motion be amended to read as follows

That the House determines that the member for Leichhardt does not have any direct or indirect pecuniary interest with the Public Service of the Commonwealth within the meaning of section 44(v) of the Constitution by reason of any contract entered into by Cape York Concrete Pty Ltd since 3 October 1998 and the member for Leichhardt is therefore not incapable of sitting as a member of this House

5111 The amendment moved by the Attorney-General was resolved in the affirmative That is in the Entsch matter the House of Representatives resolved not to refer the question of the constitutional qualifications of the Member for Leichhardt to the Court of Disputed Returns for consideration but instead resolved itself that he was not so disqualified This action asserted the right of the Parliament to make determinations on the constitutional qualifications of its own members without the involvement of the Judiciary

5112 It could be suggested that such determinations about constitutional qualifications made on the numbers in the relevant House of the Parliament might not be entirely disinterested at a political level And it might appear that anyone other than a Member of Parliament who wishes to challenge the constitutional qualifications of a sitting Member is foreclosed from doing so by the time limitation in section 355(e) of the Electoral Act which provides that a petition must be filed with the High Court within 40 days of the return of the writ for the relevant election

5113 However in those circumstances where the elected Parliament has already formed and the petition filing period has passed the Common Informers (Parliamentary Disqualifications) Act 1975 enables any person to sue the High Court for the payment of $200 per day for the period during which a Member of Parliament sits while being disqualified after being served with the originating process and the sum of $200 only in respect of a past breach The Act restricts such suits to a period no earlier than 12 months before the day on which the suit is instituted In relation to the Entsch matter this would mean that for any common informers action to be instituted Mr Entsch must have been disqualified as alleged within the 12 months preceding the date on which the suit was filed

5114 The most significant issues arising from the related matters discussed above would appear to be twofold

(a) whether the Electoral Act should continue to provide that the constitutional qualifications of Members of Parliament can be disputed by way of petition from any elector or candidate to the Court of Disputed Returns within 40 day days of the return of the writ for the election

(b) whether in the absence of either a referral to the Court of Disputed Returns by the House affected or a petition to the Court within 40 days of the return of the writ for the election or a common informerrsquos suit the Parliament should retain its authority to decide on the constitutional qualifications of its own members

5115 These issues arise out of the dispute resolution scheme provided for in the Electoral Act by the Parliament in the early part of this century and have not before been given direct consideration by the JSCEM since the major amendments to the Electoral Act in 1983 However given that these questions also go to the separation of powers between the Parliament and Judiciary and may therefore require considered submissions from all interested parties the AEC makes the following recommendation

Recommendation 1 That the JSCEM seek a reference to inquire into the powers and functions of the Australian Electoral Commission as expressed in Part II of the Electoral Act and Part I of the Referendum Act and the powers and functions of the Court of Disputed Returns as expressed in Part XXII of the Electoral Act and in Part VIII of the Referendum Act

5116 The recommendation includes reference to the powers and functions of the AEC in the context of the issues raised in part 53 below

52 Constitutional Disqualifications

521 The decision of the High Court in the SueSharples petitions was that any candidate who is a subject or citizen of a foreign power such as the United Kingdom is disqualified at the time of nomination from election to the Parliament That is Ms Heather Hill was disqualified from being elected under section 44(i) of the Constitution

522 This decision was made by the majority members of the Court (Gleeson CJ Gaudron Gummow and Hayne JJ) after they had decided that the Court of Disputed Returns had jurisdiction to hear the petition The other members of the Court (McHugh Kirby and Callinan JJ) who decided that the Court of Disputed Returns had no jurisdiction to hear the petition were not required to form a view on the constitutional qualifications question

523 This decision of the High Court on the interpretation of section 44(i) of the Constitution represents a highly significant statement about the constitutional relationship between the United Kingdom and Australia and in particular makes it very clear that persons holding dual citizenship with the United Kingdom are as equally subject to the constitutional disqualification as persons holding dual citizenship with any other foreign power

524 This may not have been clearly apparent from Sykes v Cleary in 1992 for example where after finding that Mr Phil Cleary was disqualified under section 44(iv) of the Constitution the Court went on to apply section 44(i) of the Constitution to two other candidates Mr Kardamitsis (ALP) and Mr Delacretaz (Liberal Party) who held dual citizenship with Greece and Switzerland respectively and found that they would have also been disqualified Although the Court indicated that all ldquoreasonable stepsrdquo should be taken by candidates to divest themselves of dual citizenship a doubt may have remained after this case as to whether this rule applied equally to British subjects The judgment in the SueSharples petitions should now remove any such doubts

525 However in its publications provided to intending candidates since the 1992 Sykes v Cleary decision the AEC did not find it necessary to make any such distinctions between the United Kingdom and other foreign powers in warning intending candidates to take reasonable steps to divest themselves of dual citizenship before nomination

526 For example on 17 July 1999 some three months before the 1998 federal election the AEC published Electoral Backgrounder No 4 entitled ldquoCandidate Disqualifications Section 44 of the Constitutionrdquo which provided a detailed discussion of the constitutional disqualifications for candidates at federal elections The AEC included information on how British subjects could divest themselves of dual citizenship in paragraph 27 This Backgrounder was made available to the public in hard copy from all AEC offices on the AEC Internet site (wwwaecgovau) and was provided to all candidates as part of the AEC ldquoCandidates Information Kitrdquo

(1) A vote indicated on a ballot paper opposite the name of Heather Hill be counted to the candidate next in the order of the voterrsquos preference and the numbers indicating subsequent preferences be treated as altered accordingly (2) The further counting and recounting be conducted subject to direction (1) as nearly as practicable in accordance with the relevant provisions of section 273A of the Commonwealth Electoral Act 1918 (ldquothe Actrdquo) as if there were 6 vacancies to be filled (3) The further counting and recounting identify which candidate is entitled to be elected to the third place left unfilled by the ineligibility of Heather Hill (4) The further counting and recounting identify which (if any) candidate or candidates other than Mr Ludwig Mr Mason or Senator Woodley is or are entitled to be elected in the place of Mr Ludwig Mr Mason or Senator Woodley to any of the fourth fifth or sixth places to be filled (5) Notwithstanding direction (1) any ballot paper ruled to be informal during the 1998 scrutiny be treated as informal in the further counting and recounting (6) Notwithstanding direction (1) any ballot paper ruled to be formal during the 1998 scrutiny be treated as formal in the further counting and recounting except where a ballot paper is marked with a first preference for Heather Hill followed by the marking of a second preference for each of 2 or more other candidates (7) Notwithstanding direction (1) any ballot paper showing the same preference for Heather Hill and one or more other continuing candidates be set aside as exhausted in accordance with subsection 273(26) at the point in the scrutiny at which it would have been set aside had Heather Hill been a candidate eligible for election (8) Ballot papers marked with group voting ticket votes not be counted again but that the group voting tickets figures ascertained in the 1998 scrutiny be adjusted in accordance with direction (1) for the purposes of the further counting and recounting

457 The petitioner Mr Sue was represented by Ms Tait the second respondent the AEC was represented by Mr Swan of AGS and the Attorney-General for the Commonwealth (Intervening) was represented by Mr Burmester QC A number of other parties sought leave to intervene Mr Harris the second candidate on the One Nation group voting ticket was represented by Mr Gageler Senator Woodley was represented by Mr Davey Senator-elect Mason was represented by Mr Wood and Senator OrsquoChee was represented by Mr Applegarth An affidavit of 29 June of Mr McCarthy for the AEC testified to the notification of these parties by the AEC as ordered at the previous proceedings

458 An affidavit of 28 June of Mr Spelman of the AEC which was read to the Court by Mr Swan for the AEC advised the appropriateness of a full recount computerised in accordance with section 273A of the Electoral Act and in accordance with the directions in the schedule attached to the proposed orders and the inappropriateness of a recount that did not take into account all formal votes cast in the election

459 A full recount as proposed by the AEC was supported by Senator Woodley Senator-elect Mason Senator OrsquoChee Mr Harris and the Attorney-General on the basis that the recount would resolve whether any questions arose about disturbing the election or non-election of other candidates and that the conduct of the recount would not pre-empt any submissions they might make regarding the form of any resultant orders His Honour then ordered the AEC to conduct a full recount according to the schedule and report back to the Court with the results Costs in these proceedings were reserved

4510 On 2 July 1999 proceedings resumed before Chief Justice Gleeson with the same appearances as for 29 July with the exception that (now) Senator Mason and (now) Mr OrsquoChee were represented by Mr Wood An affidavit of 30 June of Mr Spelman of the AEC which was read to the Court by Mr Swan for the AEC advised the outcome of the full recount which was that Mr Harris achieved a quota in place of Ms Hill and the other candidates elected were unchanged from those elected at the original election

4511 With respect to costs in these later proceedings Mr Swan for the AEC and Mr Burmester for the Attorney-General submitted that each party should bear their own costs The other parties present (with the first respondent Ms Hill now absent) submitted that the Commonwealth should pay their costs under section 360(4) of the Electoral Act

4512 His Honour formally granted leave to intervene to Mr OrsquoChee Senator Mason Senator Woodley and Mr Harris and then ordered

1 That Heather Hill was not duly elected at the election held on 3 October 1998 2 That Mr Len Harris be declared duly elected as a Senator for the State of Queensland in the place for which Heather Hill was returned 3 That the second respondent and the Attorney-General for the Commonwealth each bear their own costs 4 That the Commonwealth pay the costs of the petitioner Senator Woodley Senator Mason Mr OrsquoChee and Mr Harris and their costs on previous occasions which have been reserved 5 Certify for counsel

4513 Lastly His Honour noted that Mr Sharples was not present and directed that his petition be re-listed before Justice Callinan to make such orders as he thought appropriate having regard to proceedings in the Sue petition

4514 On 29 July 1999 proceedings in the Sharples petition resumed before Justice Callinan The petitioner Mr Sharples represented himself the first respondent Ms Hill did not appear the second respondent the AEC was represented by Mr Swan of AGS the Attorney-General (Intervening) did not appear and on the question of costs the Commonwealth was represented by Mr Belcher of AGS (instructed by the AEC)

4515 His Honour ordered that

1 The petition be dismissed 2 The second respondent bear its own costs 3 The Commonwealth pay the costs of the petitioner of todayrsquos proceedings and of previous occasions on which costs were reserved

4516 The outcome on costs for both petitions was that under section 360(4) of the Electoral Act the Commonwealth was ordered to pay the costs on a partyparty basis of all the parties (except the Attorney-General and the AEC) in the proceedings extending over a period of some six months and involving numerous counsel and senior counsel Whilst the public interest in these petitions was properly served in all proceedings the award of costs against the Commonwealth will amount to a substantial cost to the public purse

4517 The AEC has now been advised by the Constitutional Unit of the Australian Government Solicitor and the Department of Finance and Administration that the costs awarded against the Commonwealth are the responsibility of the AEC There is no suggestion that the AEC was at fault in the conduct of the election or proceedings on the petitions

5 Implications of the Sue and Sharples Decisions

51 Jurisdiction of the Court of Disputed Returns

511 The majority judgment of the High Court (Gleeson CJ Gaudron Gummow and Hayne JJ) in the SueSharples petitions held that section 354 of the Electoral Act validly conferred jurisdiction upon the Court of Disputed Returns to determine the constitutional question raised in the petitions namely whether Ms Heather Hill was disqualified from being elected under section 44(i) of the Constitution

512 That is it has been concluded that the Court of Disputed Returns has jurisdiction to hear petitions raising questions of constitutional disqualifications filed under Division 1 of Part XXII of the Electoral Act The corollary is that the jurisdiction of the Court of Disputed Returns to hear questions of constitutional qualifications is not limited to matters referred to the Court by the Parliament under Division 2 of Part XXII the Electoral Act

513 The jurisdictional decision in the SueSharples petitions is in accordance with the conduct of proceedings in 1992 in Sykes v Cleary (1992) 176 CLR 77 which was initiated by way of a petition filed by Mr Ian Sykes under Division 1 of Part XXII of the Electoral Act The Sykes v Cleary decision resulted in the disqualification of Mr Phil Cleary under section 44(iv) of the Constitution for holding an office of profit under the Crown at the time of his nomination and a finding that other candidates in the by-election for the Division of Wills Mr Kardamitisis (ALP) and Mr Delacretaz (Liberal Party) were disqualified under section 44(i) of the Constitution for holding dual citizenship with Greece and Switzerland respectively

514 The jurisdictional decision in the SueSharples petitions is also in accordance with the conduct of proceedings in 1996 in Free v Kelly (1996) 70 ALJR 809 which was initiated by way of a petition filed by Mr Ross Free under Division 1 of Part XXII of the Electoral Act The Free v Kelly decision resulted in the disqualification of Ms Jackie Kelly under section 44(iv) of the Constitution for holding an office of profit under the Crown at the time of her nomination

515 The history of the separation of powers between the Parliament and the Judiciary in relation to such matters begins with the commencement of the Commonwealth in 1901 when section 47 of the Constitution prevailed

Until the Parliament otherwise provides any question respecting the qualifications of a senator or of a member of the House of Representatives or respecting a vacancy in either House of the Parliament and any question of a disputed election to either House shall be determined by the House in which the question arises

516 The Parliament then otherwise provided in sections 192-206 of the Commonwealth Electoral Act 1902 to the effect that the validity of any disputed election or return was to be decided by the High Court sitting as the Court of Disputed Returns

517 Further in section 6 of the Commonwealth Electoral Act 1907 the Parliament provided that any question on the qualifications of Members of Parliament or on a vacancy in the Parliament could be referred to the Court by resolution of the House of the Parliament in which the question arose In 1918 these two Acts were consolidated into the Commonwealth Electoral Act 1918 and now appear as Divisions 1 and 2 of Part XXII of the Electoral Act

518 The most recent example of the referral by the Parliament of a question concerning the qualifications of a Member of Parliament is the case of Senator Robert Wood in 1988 when the Senate referred the question of his qualifications by way of Division 2 of Part XXII of the Electoral Act to the Court of Disputed Returns Senator Wood was subsequently found to be disqualified by section 163 of the Electoral Act because he was not an Australian citizen

519 During the course of the 1999 proceedings in the SueSharples petitions the matter of Mr Warren Entsch MP and his alleged disqualification under section 44(v) of the Constitution was raised in the Parliament On 10 June 1999 the Leader of the Opposition moved in the House of Representatives

That the following question be referred to the Court of Disputed Returns for determination pursuant to section 376 of the Commonwealth Electoral Act 1918 Whether the place of the honourable Member for Leichhardt (Mr Entsch) has become vacant pursuant to the provisions of section 44(v) of the Constitution

5110 In response the Attorney-General moved in the House of Representatives that the motion be amended to read as follows

That the House determines that the member for Leichhardt does not have any direct or indirect pecuniary interest with the Public Service of the Commonwealth within the meaning of section 44(v) of the Constitution by reason of any contract entered into by Cape York Concrete Pty Ltd since 3 October 1998 and the member for Leichhardt is therefore not incapable of sitting as a member of this House

5111 The amendment moved by the Attorney-General was resolved in the affirmative That is in the Entsch matter the House of Representatives resolved not to refer the question of the constitutional qualifications of the Member for Leichhardt to the Court of Disputed Returns for consideration but instead resolved itself that he was not so disqualified This action asserted the right of the Parliament to make determinations on the constitutional qualifications of its own members without the involvement of the Judiciary

5112 It could be suggested that such determinations about constitutional qualifications made on the numbers in the relevant House of the Parliament might not be entirely disinterested at a political level And it might appear that anyone other than a Member of Parliament who wishes to challenge the constitutional qualifications of a sitting Member is foreclosed from doing so by the time limitation in section 355(e) of the Electoral Act which provides that a petition must be filed with the High Court within 40 days of the return of the writ for the relevant election

5113 However in those circumstances where the elected Parliament has already formed and the petition filing period has passed the Common Informers (Parliamentary Disqualifications) Act 1975 enables any person to sue the High Court for the payment of $200 per day for the period during which a Member of Parliament sits while being disqualified after being served with the originating process and the sum of $200 only in respect of a past breach The Act restricts such suits to a period no earlier than 12 months before the day on which the suit is instituted In relation to the Entsch matter this would mean that for any common informers action to be instituted Mr Entsch must have been disqualified as alleged within the 12 months preceding the date on which the suit was filed

5114 The most significant issues arising from the related matters discussed above would appear to be twofold

(a) whether the Electoral Act should continue to provide that the constitutional qualifications of Members of Parliament can be disputed by way of petition from any elector or candidate to the Court of Disputed Returns within 40 day days of the return of the writ for the election

(b) whether in the absence of either a referral to the Court of Disputed Returns by the House affected or a petition to the Court within 40 days of the return of the writ for the election or a common informerrsquos suit the Parliament should retain its authority to decide on the constitutional qualifications of its own members

5115 These issues arise out of the dispute resolution scheme provided for in the Electoral Act by the Parliament in the early part of this century and have not before been given direct consideration by the JSCEM since the major amendments to the Electoral Act in 1983 However given that these questions also go to the separation of powers between the Parliament and Judiciary and may therefore require considered submissions from all interested parties the AEC makes the following recommendation

Recommendation 1 That the JSCEM seek a reference to inquire into the powers and functions of the Australian Electoral Commission as expressed in Part II of the Electoral Act and Part I of the Referendum Act and the powers and functions of the Court of Disputed Returns as expressed in Part XXII of the Electoral Act and in Part VIII of the Referendum Act

5116 The recommendation includes reference to the powers and functions of the AEC in the context of the issues raised in part 53 below

52 Constitutional Disqualifications

521 The decision of the High Court in the SueSharples petitions was that any candidate who is a subject or citizen of a foreign power such as the United Kingdom is disqualified at the time of nomination from election to the Parliament That is Ms Heather Hill was disqualified from being elected under section 44(i) of the Constitution

522 This decision was made by the majority members of the Court (Gleeson CJ Gaudron Gummow and Hayne JJ) after they had decided that the Court of Disputed Returns had jurisdiction to hear the petition The other members of the Court (McHugh Kirby and Callinan JJ) who decided that the Court of Disputed Returns had no jurisdiction to hear the petition were not required to form a view on the constitutional qualifications question

523 This decision of the High Court on the interpretation of section 44(i) of the Constitution represents a highly significant statement about the constitutional relationship between the United Kingdom and Australia and in particular makes it very clear that persons holding dual citizenship with the United Kingdom are as equally subject to the constitutional disqualification as persons holding dual citizenship with any other foreign power

524 This may not have been clearly apparent from Sykes v Cleary in 1992 for example where after finding that Mr Phil Cleary was disqualified under section 44(iv) of the Constitution the Court went on to apply section 44(i) of the Constitution to two other candidates Mr Kardamitsis (ALP) and Mr Delacretaz (Liberal Party) who held dual citizenship with Greece and Switzerland respectively and found that they would have also been disqualified Although the Court indicated that all ldquoreasonable stepsrdquo should be taken by candidates to divest themselves of dual citizenship a doubt may have remained after this case as to whether this rule applied equally to British subjects The judgment in the SueSharples petitions should now remove any such doubts

525 However in its publications provided to intending candidates since the 1992 Sykes v Cleary decision the AEC did not find it necessary to make any such distinctions between the United Kingdom and other foreign powers in warning intending candidates to take reasonable steps to divest themselves of dual citizenship before nomination

526 For example on 17 July 1999 some three months before the 1998 federal election the AEC published Electoral Backgrounder No 4 entitled ldquoCandidate Disqualifications Section 44 of the Constitutionrdquo which provided a detailed discussion of the constitutional disqualifications for candidates at federal elections The AEC included information on how British subjects could divest themselves of dual citizenship in paragraph 27 This Backgrounder was made available to the public in hard copy from all AEC offices on the AEC Internet site (wwwaecgovau) and was provided to all candidates as part of the AEC ldquoCandidates Information Kitrdquo

459 A full recount as proposed by the AEC was supported by Senator Woodley Senator-elect Mason Senator OrsquoChee Mr Harris and the Attorney-General on the basis that the recount would resolve whether any questions arose about disturbing the election or non-election of other candidates and that the conduct of the recount would not pre-empt any submissions they might make regarding the form of any resultant orders His Honour then ordered the AEC to conduct a full recount according to the schedule and report back to the Court with the results Costs in these proceedings were reserved

4510 On 2 July 1999 proceedings resumed before Chief Justice Gleeson with the same appearances as for 29 July with the exception that (now) Senator Mason and (now) Mr OrsquoChee were represented by Mr Wood An affidavit of 30 June of Mr Spelman of the AEC which was read to the Court by Mr Swan for the AEC advised the outcome of the full recount which was that Mr Harris achieved a quota in place of Ms Hill and the other candidates elected were unchanged from those elected at the original election

4511 With respect to costs in these later proceedings Mr Swan for the AEC and Mr Burmester for the Attorney-General submitted that each party should bear their own costs The other parties present (with the first respondent Ms Hill now absent) submitted that the Commonwealth should pay their costs under section 360(4) of the Electoral Act

4512 His Honour formally granted leave to intervene to Mr OrsquoChee Senator Mason Senator Woodley and Mr Harris and then ordered

1 That Heather Hill was not duly elected at the election held on 3 October 1998 2 That Mr Len Harris be declared duly elected as a Senator for the State of Queensland in the place for which Heather Hill was returned 3 That the second respondent and the Attorney-General for the Commonwealth each bear their own costs 4 That the Commonwealth pay the costs of the petitioner Senator Woodley Senator Mason Mr OrsquoChee and Mr Harris and their costs on previous occasions which have been reserved 5 Certify for counsel

4513 Lastly His Honour noted that Mr Sharples was not present and directed that his petition be re-listed before Justice Callinan to make such orders as he thought appropriate having regard to proceedings in the Sue petition

4514 On 29 July 1999 proceedings in the Sharples petition resumed before Justice Callinan The petitioner Mr Sharples represented himself the first respondent Ms Hill did not appear the second respondent the AEC was represented by Mr Swan of AGS the Attorney-General (Intervening) did not appear and on the question of costs the Commonwealth was represented by Mr Belcher of AGS (instructed by the AEC)

4515 His Honour ordered that

1 The petition be dismissed 2 The second respondent bear its own costs 3 The Commonwealth pay the costs of the petitioner of todayrsquos proceedings and of previous occasions on which costs were reserved

4516 The outcome on costs for both petitions was that under section 360(4) of the Electoral Act the Commonwealth was ordered to pay the costs on a partyparty basis of all the parties (except the Attorney-General and the AEC) in the proceedings extending over a period of some six months and involving numerous counsel and senior counsel Whilst the public interest in these petitions was properly served in all proceedings the award of costs against the Commonwealth will amount to a substantial cost to the public purse

4517 The AEC has now been advised by the Constitutional Unit of the Australian Government Solicitor and the Department of Finance and Administration that the costs awarded against the Commonwealth are the responsibility of the AEC There is no suggestion that the AEC was at fault in the conduct of the election or proceedings on the petitions

5 Implications of the Sue and Sharples Decisions

51 Jurisdiction of the Court of Disputed Returns

511 The majority judgment of the High Court (Gleeson CJ Gaudron Gummow and Hayne JJ) in the SueSharples petitions held that section 354 of the Electoral Act validly conferred jurisdiction upon the Court of Disputed Returns to determine the constitutional question raised in the petitions namely whether Ms Heather Hill was disqualified from being elected under section 44(i) of the Constitution

512 That is it has been concluded that the Court of Disputed Returns has jurisdiction to hear petitions raising questions of constitutional disqualifications filed under Division 1 of Part XXII of the Electoral Act The corollary is that the jurisdiction of the Court of Disputed Returns to hear questions of constitutional qualifications is not limited to matters referred to the Court by the Parliament under Division 2 of Part XXII the Electoral Act

513 The jurisdictional decision in the SueSharples petitions is in accordance with the conduct of proceedings in 1992 in Sykes v Cleary (1992) 176 CLR 77 which was initiated by way of a petition filed by Mr Ian Sykes under Division 1 of Part XXII of the Electoral Act The Sykes v Cleary decision resulted in the disqualification of Mr Phil Cleary under section 44(iv) of the Constitution for holding an office of profit under the Crown at the time of his nomination and a finding that other candidates in the by-election for the Division of Wills Mr Kardamitisis (ALP) and Mr Delacretaz (Liberal Party) were disqualified under section 44(i) of the Constitution for holding dual citizenship with Greece and Switzerland respectively

514 The jurisdictional decision in the SueSharples petitions is also in accordance with the conduct of proceedings in 1996 in Free v Kelly (1996) 70 ALJR 809 which was initiated by way of a petition filed by Mr Ross Free under Division 1 of Part XXII of the Electoral Act The Free v Kelly decision resulted in the disqualification of Ms Jackie Kelly under section 44(iv) of the Constitution for holding an office of profit under the Crown at the time of her nomination

515 The history of the separation of powers between the Parliament and the Judiciary in relation to such matters begins with the commencement of the Commonwealth in 1901 when section 47 of the Constitution prevailed

Until the Parliament otherwise provides any question respecting the qualifications of a senator or of a member of the House of Representatives or respecting a vacancy in either House of the Parliament and any question of a disputed election to either House shall be determined by the House in which the question arises

516 The Parliament then otherwise provided in sections 192-206 of the Commonwealth Electoral Act 1902 to the effect that the validity of any disputed election or return was to be decided by the High Court sitting as the Court of Disputed Returns

517 Further in section 6 of the Commonwealth Electoral Act 1907 the Parliament provided that any question on the qualifications of Members of Parliament or on a vacancy in the Parliament could be referred to the Court by resolution of the House of the Parliament in which the question arose In 1918 these two Acts were consolidated into the Commonwealth Electoral Act 1918 and now appear as Divisions 1 and 2 of Part XXII of the Electoral Act

518 The most recent example of the referral by the Parliament of a question concerning the qualifications of a Member of Parliament is the case of Senator Robert Wood in 1988 when the Senate referred the question of his qualifications by way of Division 2 of Part XXII of the Electoral Act to the Court of Disputed Returns Senator Wood was subsequently found to be disqualified by section 163 of the Electoral Act because he was not an Australian citizen

519 During the course of the 1999 proceedings in the SueSharples petitions the matter of Mr Warren Entsch MP and his alleged disqualification under section 44(v) of the Constitution was raised in the Parliament On 10 June 1999 the Leader of the Opposition moved in the House of Representatives

That the following question be referred to the Court of Disputed Returns for determination pursuant to section 376 of the Commonwealth Electoral Act 1918 Whether the place of the honourable Member for Leichhardt (Mr Entsch) has become vacant pursuant to the provisions of section 44(v) of the Constitution

5110 In response the Attorney-General moved in the House of Representatives that the motion be amended to read as follows

That the House determines that the member for Leichhardt does not have any direct or indirect pecuniary interest with the Public Service of the Commonwealth within the meaning of section 44(v) of the Constitution by reason of any contract entered into by Cape York Concrete Pty Ltd since 3 October 1998 and the member for Leichhardt is therefore not incapable of sitting as a member of this House

5111 The amendment moved by the Attorney-General was resolved in the affirmative That is in the Entsch matter the House of Representatives resolved not to refer the question of the constitutional qualifications of the Member for Leichhardt to the Court of Disputed Returns for consideration but instead resolved itself that he was not so disqualified This action asserted the right of the Parliament to make determinations on the constitutional qualifications of its own members without the involvement of the Judiciary

5112 It could be suggested that such determinations about constitutional qualifications made on the numbers in the relevant House of the Parliament might not be entirely disinterested at a political level And it might appear that anyone other than a Member of Parliament who wishes to challenge the constitutional qualifications of a sitting Member is foreclosed from doing so by the time limitation in section 355(e) of the Electoral Act which provides that a petition must be filed with the High Court within 40 days of the return of the writ for the relevant election

5113 However in those circumstances where the elected Parliament has already formed and the petition filing period has passed the Common Informers (Parliamentary Disqualifications) Act 1975 enables any person to sue the High Court for the payment of $200 per day for the period during which a Member of Parliament sits while being disqualified after being served with the originating process and the sum of $200 only in respect of a past breach The Act restricts such suits to a period no earlier than 12 months before the day on which the suit is instituted In relation to the Entsch matter this would mean that for any common informers action to be instituted Mr Entsch must have been disqualified as alleged within the 12 months preceding the date on which the suit was filed

5114 The most significant issues arising from the related matters discussed above would appear to be twofold

(a) whether the Electoral Act should continue to provide that the constitutional qualifications of Members of Parliament can be disputed by way of petition from any elector or candidate to the Court of Disputed Returns within 40 day days of the return of the writ for the election

(b) whether in the absence of either a referral to the Court of Disputed Returns by the House affected or a petition to the Court within 40 days of the return of the writ for the election or a common informerrsquos suit the Parliament should retain its authority to decide on the constitutional qualifications of its own members

5115 These issues arise out of the dispute resolution scheme provided for in the Electoral Act by the Parliament in the early part of this century and have not before been given direct consideration by the JSCEM since the major amendments to the Electoral Act in 1983 However given that these questions also go to the separation of powers between the Parliament and Judiciary and may therefore require considered submissions from all interested parties the AEC makes the following recommendation

Recommendation 1 That the JSCEM seek a reference to inquire into the powers and functions of the Australian Electoral Commission as expressed in Part II of the Electoral Act and Part I of the Referendum Act and the powers and functions of the Court of Disputed Returns as expressed in Part XXII of the Electoral Act and in Part VIII of the Referendum Act

5116 The recommendation includes reference to the powers and functions of the AEC in the context of the issues raised in part 53 below

52 Constitutional Disqualifications

521 The decision of the High Court in the SueSharples petitions was that any candidate who is a subject or citizen of a foreign power such as the United Kingdom is disqualified at the time of nomination from election to the Parliament That is Ms Heather Hill was disqualified from being elected under section 44(i) of the Constitution

522 This decision was made by the majority members of the Court (Gleeson CJ Gaudron Gummow and Hayne JJ) after they had decided that the Court of Disputed Returns had jurisdiction to hear the petition The other members of the Court (McHugh Kirby and Callinan JJ) who decided that the Court of Disputed Returns had no jurisdiction to hear the petition were not required to form a view on the constitutional qualifications question

523 This decision of the High Court on the interpretation of section 44(i) of the Constitution represents a highly significant statement about the constitutional relationship between the United Kingdom and Australia and in particular makes it very clear that persons holding dual citizenship with the United Kingdom are as equally subject to the constitutional disqualification as persons holding dual citizenship with any other foreign power

524 This may not have been clearly apparent from Sykes v Cleary in 1992 for example where after finding that Mr Phil Cleary was disqualified under section 44(iv) of the Constitution the Court went on to apply section 44(i) of the Constitution to two other candidates Mr Kardamitsis (ALP) and Mr Delacretaz (Liberal Party) who held dual citizenship with Greece and Switzerland respectively and found that they would have also been disqualified Although the Court indicated that all ldquoreasonable stepsrdquo should be taken by candidates to divest themselves of dual citizenship a doubt may have remained after this case as to whether this rule applied equally to British subjects The judgment in the SueSharples petitions should now remove any such doubts

525 However in its publications provided to intending candidates since the 1992 Sykes v Cleary decision the AEC did not find it necessary to make any such distinctions between the United Kingdom and other foreign powers in warning intending candidates to take reasonable steps to divest themselves of dual citizenship before nomination

526 For example on 17 July 1999 some three months before the 1998 federal election the AEC published Electoral Backgrounder No 4 entitled ldquoCandidate Disqualifications Section 44 of the Constitutionrdquo which provided a detailed discussion of the constitutional disqualifications for candidates at federal elections The AEC included information on how British subjects could divest themselves of dual citizenship in paragraph 27 This Backgrounder was made available to the public in hard copy from all AEC offices on the AEC Internet site (wwwaecgovau) and was provided to all candidates as part of the AEC ldquoCandidates Information Kitrdquo

4515 His Honour ordered that

1 The petition be dismissed 2 The second respondent bear its own costs 3 The Commonwealth pay the costs of the petitioner of todayrsquos proceedings and of previous occasions on which costs were reserved

4516 The outcome on costs for both petitions was that under section 360(4) of the Electoral Act the Commonwealth was ordered to pay the costs on a partyparty basis of all the parties (except the Attorney-General and the AEC) in the proceedings extending over a period of some six months and involving numerous counsel and senior counsel Whilst the public interest in these petitions was properly served in all proceedings the award of costs against the Commonwealth will amount to a substantial cost to the public purse

4517 The AEC has now been advised by the Constitutional Unit of the Australian Government Solicitor and the Department of Finance and Administration that the costs awarded against the Commonwealth are the responsibility of the AEC There is no suggestion that the AEC was at fault in the conduct of the election or proceedings on the petitions

5 Implications of the Sue and Sharples Decisions

51 Jurisdiction of the Court of Disputed Returns

511 The majority judgment of the High Court (Gleeson CJ Gaudron Gummow and Hayne JJ) in the SueSharples petitions held that section 354 of the Electoral Act validly conferred jurisdiction upon the Court of Disputed Returns to determine the constitutional question raised in the petitions namely whether Ms Heather Hill was disqualified from being elected under section 44(i) of the Constitution

512 That is it has been concluded that the Court of Disputed Returns has jurisdiction to hear petitions raising questions of constitutional disqualifications filed under Division 1 of Part XXII of the Electoral Act The corollary is that the jurisdiction of the Court of Disputed Returns to hear questions of constitutional qualifications is not limited to matters referred to the Court by the Parliament under Division 2 of Part XXII the Electoral Act

513 The jurisdictional decision in the SueSharples petitions is in accordance with the conduct of proceedings in 1992 in Sykes v Cleary (1992) 176 CLR 77 which was initiated by way of a petition filed by Mr Ian Sykes under Division 1 of Part XXII of the Electoral Act The Sykes v Cleary decision resulted in the disqualification of Mr Phil Cleary under section 44(iv) of the Constitution for holding an office of profit under the Crown at the time of his nomination and a finding that other candidates in the by-election for the Division of Wills Mr Kardamitisis (ALP) and Mr Delacretaz (Liberal Party) were disqualified under section 44(i) of the Constitution for holding dual citizenship with Greece and Switzerland respectively

514 The jurisdictional decision in the SueSharples petitions is also in accordance with the conduct of proceedings in 1996 in Free v Kelly (1996) 70 ALJR 809 which was initiated by way of a petition filed by Mr Ross Free under Division 1 of Part XXII of the Electoral Act The Free v Kelly decision resulted in the disqualification of Ms Jackie Kelly under section 44(iv) of the Constitution for holding an office of profit under the Crown at the time of her nomination

515 The history of the separation of powers between the Parliament and the Judiciary in relation to such matters begins with the commencement of the Commonwealth in 1901 when section 47 of the Constitution prevailed

Until the Parliament otherwise provides any question respecting the qualifications of a senator or of a member of the House of Representatives or respecting a vacancy in either House of the Parliament and any question of a disputed election to either House shall be determined by the House in which the question arises

516 The Parliament then otherwise provided in sections 192-206 of the Commonwealth Electoral Act 1902 to the effect that the validity of any disputed election or return was to be decided by the High Court sitting as the Court of Disputed Returns

517 Further in section 6 of the Commonwealth Electoral Act 1907 the Parliament provided that any question on the qualifications of Members of Parliament or on a vacancy in the Parliament could be referred to the Court by resolution of the House of the Parliament in which the question arose In 1918 these two Acts were consolidated into the Commonwealth Electoral Act 1918 and now appear as Divisions 1 and 2 of Part XXII of the Electoral Act

518 The most recent example of the referral by the Parliament of a question concerning the qualifications of a Member of Parliament is the case of Senator Robert Wood in 1988 when the Senate referred the question of his qualifications by way of Division 2 of Part XXII of the Electoral Act to the Court of Disputed Returns Senator Wood was subsequently found to be disqualified by section 163 of the Electoral Act because he was not an Australian citizen

519 During the course of the 1999 proceedings in the SueSharples petitions the matter of Mr Warren Entsch MP and his alleged disqualification under section 44(v) of the Constitution was raised in the Parliament On 10 June 1999 the Leader of the Opposition moved in the House of Representatives

That the following question be referred to the Court of Disputed Returns for determination pursuant to section 376 of the Commonwealth Electoral Act 1918 Whether the place of the honourable Member for Leichhardt (Mr Entsch) has become vacant pursuant to the provisions of section 44(v) of the Constitution

5110 In response the Attorney-General moved in the House of Representatives that the motion be amended to read as follows

That the House determines that the member for Leichhardt does not have any direct or indirect pecuniary interest with the Public Service of the Commonwealth within the meaning of section 44(v) of the Constitution by reason of any contract entered into by Cape York Concrete Pty Ltd since 3 October 1998 and the member for Leichhardt is therefore not incapable of sitting as a member of this House

5111 The amendment moved by the Attorney-General was resolved in the affirmative That is in the Entsch matter the House of Representatives resolved not to refer the question of the constitutional qualifications of the Member for Leichhardt to the Court of Disputed Returns for consideration but instead resolved itself that he was not so disqualified This action asserted the right of the Parliament to make determinations on the constitutional qualifications of its own members without the involvement of the Judiciary

5112 It could be suggested that such determinations about constitutional qualifications made on the numbers in the relevant House of the Parliament might not be entirely disinterested at a political level And it might appear that anyone other than a Member of Parliament who wishes to challenge the constitutional qualifications of a sitting Member is foreclosed from doing so by the time limitation in section 355(e) of the Electoral Act which provides that a petition must be filed with the High Court within 40 days of the return of the writ for the relevant election

5113 However in those circumstances where the elected Parliament has already formed and the petition filing period has passed the Common Informers (Parliamentary Disqualifications) Act 1975 enables any person to sue the High Court for the payment of $200 per day for the period during which a Member of Parliament sits while being disqualified after being served with the originating process and the sum of $200 only in respect of a past breach The Act restricts such suits to a period no earlier than 12 months before the day on which the suit is instituted In relation to the Entsch matter this would mean that for any common informers action to be instituted Mr Entsch must have been disqualified as alleged within the 12 months preceding the date on which the suit was filed

5114 The most significant issues arising from the related matters discussed above would appear to be twofold

(a) whether the Electoral Act should continue to provide that the constitutional qualifications of Members of Parliament can be disputed by way of petition from any elector or candidate to the Court of Disputed Returns within 40 day days of the return of the writ for the election

(b) whether in the absence of either a referral to the Court of Disputed Returns by the House affected or a petition to the Court within 40 days of the return of the writ for the election or a common informerrsquos suit the Parliament should retain its authority to decide on the constitutional qualifications of its own members

5115 These issues arise out of the dispute resolution scheme provided for in the Electoral Act by the Parliament in the early part of this century and have not before been given direct consideration by the JSCEM since the major amendments to the Electoral Act in 1983 However given that these questions also go to the separation of powers between the Parliament and Judiciary and may therefore require considered submissions from all interested parties the AEC makes the following recommendation

Recommendation 1 That the JSCEM seek a reference to inquire into the powers and functions of the Australian Electoral Commission as expressed in Part II of the Electoral Act and Part I of the Referendum Act and the powers and functions of the Court of Disputed Returns as expressed in Part XXII of the Electoral Act and in Part VIII of the Referendum Act

5116 The recommendation includes reference to the powers and functions of the AEC in the context of the issues raised in part 53 below

52 Constitutional Disqualifications

521 The decision of the High Court in the SueSharples petitions was that any candidate who is a subject or citizen of a foreign power such as the United Kingdom is disqualified at the time of nomination from election to the Parliament That is Ms Heather Hill was disqualified from being elected under section 44(i) of the Constitution

522 This decision was made by the majority members of the Court (Gleeson CJ Gaudron Gummow and Hayne JJ) after they had decided that the Court of Disputed Returns had jurisdiction to hear the petition The other members of the Court (McHugh Kirby and Callinan JJ) who decided that the Court of Disputed Returns had no jurisdiction to hear the petition were not required to form a view on the constitutional qualifications question

523 This decision of the High Court on the interpretation of section 44(i) of the Constitution represents a highly significant statement about the constitutional relationship between the United Kingdom and Australia and in particular makes it very clear that persons holding dual citizenship with the United Kingdom are as equally subject to the constitutional disqualification as persons holding dual citizenship with any other foreign power

524 This may not have been clearly apparent from Sykes v Cleary in 1992 for example where after finding that Mr Phil Cleary was disqualified under section 44(iv) of the Constitution the Court went on to apply section 44(i) of the Constitution to two other candidates Mr Kardamitsis (ALP) and Mr Delacretaz (Liberal Party) who held dual citizenship with Greece and Switzerland respectively and found that they would have also been disqualified Although the Court indicated that all ldquoreasonable stepsrdquo should be taken by candidates to divest themselves of dual citizenship a doubt may have remained after this case as to whether this rule applied equally to British subjects The judgment in the SueSharples petitions should now remove any such doubts

525 However in its publications provided to intending candidates since the 1992 Sykes v Cleary decision the AEC did not find it necessary to make any such distinctions between the United Kingdom and other foreign powers in warning intending candidates to take reasonable steps to divest themselves of dual citizenship before nomination

526 For example on 17 July 1999 some three months before the 1998 federal election the AEC published Electoral Backgrounder No 4 entitled ldquoCandidate Disqualifications Section 44 of the Constitutionrdquo which provided a detailed discussion of the constitutional disqualifications for candidates at federal elections The AEC included information on how British subjects could divest themselves of dual citizenship in paragraph 27 This Backgrounder was made available to the public in hard copy from all AEC offices on the AEC Internet site (wwwaecgovau) and was provided to all candidates as part of the AEC ldquoCandidates Information Kitrdquo

5 Implications of the Sue and Sharples Decisions

51 Jurisdiction of the Court of Disputed Returns

511 The majority judgment of the High Court (Gleeson CJ Gaudron Gummow and Hayne JJ) in the SueSharples petitions held that section 354 of the Electoral Act validly conferred jurisdiction upon the Court of Disputed Returns to determine the constitutional question raised in the petitions namely whether Ms Heather Hill was disqualified from being elected under section 44(i) of the Constitution

512 That is it has been concluded that the Court of Disputed Returns has jurisdiction to hear petitions raising questions of constitutional disqualifications filed under Division 1 of Part XXII of the Electoral Act The corollary is that the jurisdiction of the Court of Disputed Returns to hear questions of constitutional qualifications is not limited to matters referred to the Court by the Parliament under Division 2 of Part XXII the Electoral Act

513 The jurisdictional decision in the SueSharples petitions is in accordance with the conduct of proceedings in 1992 in Sykes v Cleary (1992) 176 CLR 77 which was initiated by way of a petition filed by Mr Ian Sykes under Division 1 of Part XXII of the Electoral Act The Sykes v Cleary decision resulted in the disqualification of Mr Phil Cleary under section 44(iv) of the Constitution for holding an office of profit under the Crown at the time of his nomination and a finding that other candidates in the by-election for the Division of Wills Mr Kardamitisis (ALP) and Mr Delacretaz (Liberal Party) were disqualified under section 44(i) of the Constitution for holding dual citizenship with Greece and Switzerland respectively

514 The jurisdictional decision in the SueSharples petitions is also in accordance with the conduct of proceedings in 1996 in Free v Kelly (1996) 70 ALJR 809 which was initiated by way of a petition filed by Mr Ross Free under Division 1 of Part XXII of the Electoral Act The Free v Kelly decision resulted in the disqualification of Ms Jackie Kelly under section 44(iv) of the Constitution for holding an office of profit under the Crown at the time of her nomination

515 The history of the separation of powers between the Parliament and the Judiciary in relation to such matters begins with the commencement of the Commonwealth in 1901 when section 47 of the Constitution prevailed

Until the Parliament otherwise provides any question respecting the qualifications of a senator or of a member of the House of Representatives or respecting a vacancy in either House of the Parliament and any question of a disputed election to either House shall be determined by the House in which the question arises

516 The Parliament then otherwise provided in sections 192-206 of the Commonwealth Electoral Act 1902 to the effect that the validity of any disputed election or return was to be decided by the High Court sitting as the Court of Disputed Returns

517 Further in section 6 of the Commonwealth Electoral Act 1907 the Parliament provided that any question on the qualifications of Members of Parliament or on a vacancy in the Parliament could be referred to the Court by resolution of the House of the Parliament in which the question arose In 1918 these two Acts were consolidated into the Commonwealth Electoral Act 1918 and now appear as Divisions 1 and 2 of Part XXII of the Electoral Act

518 The most recent example of the referral by the Parliament of a question concerning the qualifications of a Member of Parliament is the case of Senator Robert Wood in 1988 when the Senate referred the question of his qualifications by way of Division 2 of Part XXII of the Electoral Act to the Court of Disputed Returns Senator Wood was subsequently found to be disqualified by section 163 of the Electoral Act because he was not an Australian citizen

519 During the course of the 1999 proceedings in the SueSharples petitions the matter of Mr Warren Entsch MP and his alleged disqualification under section 44(v) of the Constitution was raised in the Parliament On 10 June 1999 the Leader of the Opposition moved in the House of Representatives

That the following question be referred to the Court of Disputed Returns for determination pursuant to section 376 of the Commonwealth Electoral Act 1918 Whether the place of the honourable Member for Leichhardt (Mr Entsch) has become vacant pursuant to the provisions of section 44(v) of the Constitution

5110 In response the Attorney-General moved in the House of Representatives that the motion be amended to read as follows

That the House determines that the member for Leichhardt does not have any direct or indirect pecuniary interest with the Public Service of the Commonwealth within the meaning of section 44(v) of the Constitution by reason of any contract entered into by Cape York Concrete Pty Ltd since 3 October 1998 and the member for Leichhardt is therefore not incapable of sitting as a member of this House

5111 The amendment moved by the Attorney-General was resolved in the affirmative That is in the Entsch matter the House of Representatives resolved not to refer the question of the constitutional qualifications of the Member for Leichhardt to the Court of Disputed Returns for consideration but instead resolved itself that he was not so disqualified This action asserted the right of the Parliament to make determinations on the constitutional qualifications of its own members without the involvement of the Judiciary

5112 It could be suggested that such determinations about constitutional qualifications made on the numbers in the relevant House of the Parliament might not be entirely disinterested at a political level And it might appear that anyone other than a Member of Parliament who wishes to challenge the constitutional qualifications of a sitting Member is foreclosed from doing so by the time limitation in section 355(e) of the Electoral Act which provides that a petition must be filed with the High Court within 40 days of the return of the writ for the relevant election

5113 However in those circumstances where the elected Parliament has already formed and the petition filing period has passed the Common Informers (Parliamentary Disqualifications) Act 1975 enables any person to sue the High Court for the payment of $200 per day for the period during which a Member of Parliament sits while being disqualified after being served with the originating process and the sum of $200 only in respect of a past breach The Act restricts such suits to a period no earlier than 12 months before the day on which the suit is instituted In relation to the Entsch matter this would mean that for any common informers action to be instituted Mr Entsch must have been disqualified as alleged within the 12 months preceding the date on which the suit was filed

5114 The most significant issues arising from the related matters discussed above would appear to be twofold

(a) whether the Electoral Act should continue to provide that the constitutional qualifications of Members of Parliament can be disputed by way of petition from any elector or candidate to the Court of Disputed Returns within 40 day days of the return of the writ for the election

(b) whether in the absence of either a referral to the Court of Disputed Returns by the House affected or a petition to the Court within 40 days of the return of the writ for the election or a common informerrsquos suit the Parliament should retain its authority to decide on the constitutional qualifications of its own members

5115 These issues arise out of the dispute resolution scheme provided for in the Electoral Act by the Parliament in the early part of this century and have not before been given direct consideration by the JSCEM since the major amendments to the Electoral Act in 1983 However given that these questions also go to the separation of powers between the Parliament and Judiciary and may therefore require considered submissions from all interested parties the AEC makes the following recommendation

Recommendation 1 That the JSCEM seek a reference to inquire into the powers and functions of the Australian Electoral Commission as expressed in Part II of the Electoral Act and Part I of the Referendum Act and the powers and functions of the Court of Disputed Returns as expressed in Part XXII of the Electoral Act and in Part VIII of the Referendum Act

5116 The recommendation includes reference to the powers and functions of the AEC in the context of the issues raised in part 53 below

52 Constitutional Disqualifications

521 The decision of the High Court in the SueSharples petitions was that any candidate who is a subject or citizen of a foreign power such as the United Kingdom is disqualified at the time of nomination from election to the Parliament That is Ms Heather Hill was disqualified from being elected under section 44(i) of the Constitution

522 This decision was made by the majority members of the Court (Gleeson CJ Gaudron Gummow and Hayne JJ) after they had decided that the Court of Disputed Returns had jurisdiction to hear the petition The other members of the Court (McHugh Kirby and Callinan JJ) who decided that the Court of Disputed Returns had no jurisdiction to hear the petition were not required to form a view on the constitutional qualifications question

523 This decision of the High Court on the interpretation of section 44(i) of the Constitution represents a highly significant statement about the constitutional relationship between the United Kingdom and Australia and in particular makes it very clear that persons holding dual citizenship with the United Kingdom are as equally subject to the constitutional disqualification as persons holding dual citizenship with any other foreign power

524 This may not have been clearly apparent from Sykes v Cleary in 1992 for example where after finding that Mr Phil Cleary was disqualified under section 44(iv) of the Constitution the Court went on to apply section 44(i) of the Constitution to two other candidates Mr Kardamitsis (ALP) and Mr Delacretaz (Liberal Party) who held dual citizenship with Greece and Switzerland respectively and found that they would have also been disqualified Although the Court indicated that all ldquoreasonable stepsrdquo should be taken by candidates to divest themselves of dual citizenship a doubt may have remained after this case as to whether this rule applied equally to British subjects The judgment in the SueSharples petitions should now remove any such doubts

525 However in its publications provided to intending candidates since the 1992 Sykes v Cleary decision the AEC did not find it necessary to make any such distinctions between the United Kingdom and other foreign powers in warning intending candidates to take reasonable steps to divest themselves of dual citizenship before nomination

526 For example on 17 July 1999 some three months before the 1998 federal election the AEC published Electoral Backgrounder No 4 entitled ldquoCandidate Disqualifications Section 44 of the Constitutionrdquo which provided a detailed discussion of the constitutional disqualifications for candidates at federal elections The AEC included information on how British subjects could divest themselves of dual citizenship in paragraph 27 This Backgrounder was made available to the public in hard copy from all AEC offices on the AEC Internet site (wwwaecgovau) and was provided to all candidates as part of the AEC ldquoCandidates Information Kitrdquo

516 The Parliament then otherwise provided in sections 192-206 of the Commonwealth Electoral Act 1902 to the effect that the validity of any disputed election or return was to be decided by the High Court sitting as the Court of Disputed Returns

517 Further in section 6 of the Commonwealth Electoral Act 1907 the Parliament provided that any question on the qualifications of Members of Parliament or on a vacancy in the Parliament could be referred to the Court by resolution of the House of the Parliament in which the question arose In 1918 these two Acts were consolidated into the Commonwealth Electoral Act 1918 and now appear as Divisions 1 and 2 of Part XXII of the Electoral Act

518 The most recent example of the referral by the Parliament of a question concerning the qualifications of a Member of Parliament is the case of Senator Robert Wood in 1988 when the Senate referred the question of his qualifications by way of Division 2 of Part XXII of the Electoral Act to the Court of Disputed Returns Senator Wood was subsequently found to be disqualified by section 163 of the Electoral Act because he was not an Australian citizen

519 During the course of the 1999 proceedings in the SueSharples petitions the matter of Mr Warren Entsch MP and his alleged disqualification under section 44(v) of the Constitution was raised in the Parliament On 10 June 1999 the Leader of the Opposition moved in the House of Representatives

That the following question be referred to the Court of Disputed Returns for determination pursuant to section 376 of the Commonwealth Electoral Act 1918 Whether the place of the honourable Member for Leichhardt (Mr Entsch) has become vacant pursuant to the provisions of section 44(v) of the Constitution

5110 In response the Attorney-General moved in the House of Representatives that the motion be amended to read as follows

That the House determines that the member for Leichhardt does not have any direct or indirect pecuniary interest with the Public Service of the Commonwealth within the meaning of section 44(v) of the Constitution by reason of any contract entered into by Cape York Concrete Pty Ltd since 3 October 1998 and the member for Leichhardt is therefore not incapable of sitting as a member of this House

5111 The amendment moved by the Attorney-General was resolved in the affirmative That is in the Entsch matter the House of Representatives resolved not to refer the question of the constitutional qualifications of the Member for Leichhardt to the Court of Disputed Returns for consideration but instead resolved itself that he was not so disqualified This action asserted the right of the Parliament to make determinations on the constitutional qualifications of its own members without the involvement of the Judiciary

5112 It could be suggested that such determinations about constitutional qualifications made on the numbers in the relevant House of the Parliament might not be entirely disinterested at a political level And it might appear that anyone other than a Member of Parliament who wishes to challenge the constitutional qualifications of a sitting Member is foreclosed from doing so by the time limitation in section 355(e) of the Electoral Act which provides that a petition must be filed with the High Court within 40 days of the return of the writ for the relevant election

5113 However in those circumstances where the elected Parliament has already formed and the petition filing period has passed the Common Informers (Parliamentary Disqualifications) Act 1975 enables any person to sue the High Court for the payment of $200 per day for the period during which a Member of Parliament sits while being disqualified after being served with the originating process and the sum of $200 only in respect of a past breach The Act restricts such suits to a period no earlier than 12 months before the day on which the suit is instituted In relation to the Entsch matter this would mean that for any common informers action to be instituted Mr Entsch must have been disqualified as alleged within the 12 months preceding the date on which the suit was filed

5114 The most significant issues arising from the related matters discussed above would appear to be twofold

(a) whether the Electoral Act should continue to provide that the constitutional qualifications of Members of Parliament can be disputed by way of petition from any elector or candidate to the Court of Disputed Returns within 40 day days of the return of the writ for the election

(b) whether in the absence of either a referral to the Court of Disputed Returns by the House affected or a petition to the Court within 40 days of the return of the writ for the election or a common informerrsquos suit the Parliament should retain its authority to decide on the constitutional qualifications of its own members

5115 These issues arise out of the dispute resolution scheme provided for in the Electoral Act by the Parliament in the early part of this century and have not before been given direct consideration by the JSCEM since the major amendments to the Electoral Act in 1983 However given that these questions also go to the separation of powers between the Parliament and Judiciary and may therefore require considered submissions from all interested parties the AEC makes the following recommendation

Recommendation 1 That the JSCEM seek a reference to inquire into the powers and functions of the Australian Electoral Commission as expressed in Part II of the Electoral Act and Part I of the Referendum Act and the powers and functions of the Court of Disputed Returns as expressed in Part XXII of the Electoral Act and in Part VIII of the Referendum Act

5116 The recommendation includes reference to the powers and functions of the AEC in the context of the issues raised in part 53 below

52 Constitutional Disqualifications

521 The decision of the High Court in the SueSharples petitions was that any candidate who is a subject or citizen of a foreign power such as the United Kingdom is disqualified at the time of nomination from election to the Parliament That is Ms Heather Hill was disqualified from being elected under section 44(i) of the Constitution

522 This decision was made by the majority members of the Court (Gleeson CJ Gaudron Gummow and Hayne JJ) after they had decided that the Court of Disputed Returns had jurisdiction to hear the petition The other members of the Court (McHugh Kirby and Callinan JJ) who decided that the Court of Disputed Returns had no jurisdiction to hear the petition were not required to form a view on the constitutional qualifications question

523 This decision of the High Court on the interpretation of section 44(i) of the Constitution represents a highly significant statement about the constitutional relationship between the United Kingdom and Australia and in particular makes it very clear that persons holding dual citizenship with the United Kingdom are as equally subject to the constitutional disqualification as persons holding dual citizenship with any other foreign power

524 This may not have been clearly apparent from Sykes v Cleary in 1992 for example where after finding that Mr Phil Cleary was disqualified under section 44(iv) of the Constitution the Court went on to apply section 44(i) of the Constitution to two other candidates Mr Kardamitsis (ALP) and Mr Delacretaz (Liberal Party) who held dual citizenship with Greece and Switzerland respectively and found that they would have also been disqualified Although the Court indicated that all ldquoreasonable stepsrdquo should be taken by candidates to divest themselves of dual citizenship a doubt may have remained after this case as to whether this rule applied equally to British subjects The judgment in the SueSharples petitions should now remove any such doubts

525 However in its publications provided to intending candidates since the 1992 Sykes v Cleary decision the AEC did not find it necessary to make any such distinctions between the United Kingdom and other foreign powers in warning intending candidates to take reasonable steps to divest themselves of dual citizenship before nomination

526 For example on 17 July 1999 some three months before the 1998 federal election the AEC published Electoral Backgrounder No 4 entitled ldquoCandidate Disqualifications Section 44 of the Constitutionrdquo which provided a detailed discussion of the constitutional disqualifications for candidates at federal elections The AEC included information on how British subjects could divest themselves of dual citizenship in paragraph 27 This Backgrounder was made available to the public in hard copy from all AEC offices on the AEC Internet site (wwwaecgovau) and was provided to all candidates as part of the AEC ldquoCandidates Information Kitrdquo

5112 It could be suggested that such determinations about constitutional qualifications made on the numbers in the relevant House of the Parliament might not be entirely disinterested at a political level And it might appear that anyone other than a Member of Parliament who wishes to challenge the constitutional qualifications of a sitting Member is foreclosed from doing so by the time limitation in section 355(e) of the Electoral Act which provides that a petition must be filed with the High Court within 40 days of the return of the writ for the relevant election

5113 However in those circumstances where the elected Parliament has already formed and the petition filing period has passed the Common Informers (Parliamentary Disqualifications) Act 1975 enables any person to sue the High Court for the payment of $200 per day for the period during which a Member of Parliament sits while being disqualified after being served with the originating process and the sum of $200 only in respect of a past breach The Act restricts such suits to a period no earlier than 12 months before the day on which the suit is instituted In relation to the Entsch matter this would mean that for any common informers action to be instituted Mr Entsch must have been disqualified as alleged within the 12 months preceding the date on which the suit was filed

5114 The most significant issues arising from the related matters discussed above would appear to be twofold

(a) whether the Electoral Act should continue to provide that the constitutional qualifications of Members of Parliament can be disputed by way of petition from any elector or candidate to the Court of Disputed Returns within 40 day days of the return of the writ for the election

(b) whether in the absence of either a referral to the Court of Disputed Returns by the House affected or a petition to the Court within 40 days of the return of the writ for the election or a common informerrsquos suit the Parliament should retain its authority to decide on the constitutional qualifications of its own members

5115 These issues arise out of the dispute resolution scheme provided for in the Electoral Act by the Parliament in the early part of this century and have not before been given direct consideration by the JSCEM since the major amendments to the Electoral Act in 1983 However given that these questions also go to the separation of powers between the Parliament and Judiciary and may therefore require considered submissions from all interested parties the AEC makes the following recommendation

Recommendation 1 That the JSCEM seek a reference to inquire into the powers and functions of the Australian Electoral Commission as expressed in Part II of the Electoral Act and Part I of the Referendum Act and the powers and functions of the Court of Disputed Returns as expressed in Part XXII of the Electoral Act and in Part VIII of the Referendum Act

5116 The recommendation includes reference to the powers and functions of the AEC in the context of the issues raised in part 53 below

52 Constitutional Disqualifications

521 The decision of the High Court in the SueSharples petitions was that any candidate who is a subject or citizen of a foreign power such as the United Kingdom is disqualified at the time of nomination from election to the Parliament That is Ms Heather Hill was disqualified from being elected under section 44(i) of the Constitution

522 This decision was made by the majority members of the Court (Gleeson CJ Gaudron Gummow and Hayne JJ) after they had decided that the Court of Disputed Returns had jurisdiction to hear the petition The other members of the Court (McHugh Kirby and Callinan JJ) who decided that the Court of Disputed Returns had no jurisdiction to hear the petition were not required to form a view on the constitutional qualifications question

523 This decision of the High Court on the interpretation of section 44(i) of the Constitution represents a highly significant statement about the constitutional relationship between the United Kingdom and Australia and in particular makes it very clear that persons holding dual citizenship with the United Kingdom are as equally subject to the constitutional disqualification as persons holding dual citizenship with any other foreign power

524 This may not have been clearly apparent from Sykes v Cleary in 1992 for example where after finding that Mr Phil Cleary was disqualified under section 44(iv) of the Constitution the Court went on to apply section 44(i) of the Constitution to two other candidates Mr Kardamitsis (ALP) and Mr Delacretaz (Liberal Party) who held dual citizenship with Greece and Switzerland respectively and found that they would have also been disqualified Although the Court indicated that all ldquoreasonable stepsrdquo should be taken by candidates to divest themselves of dual citizenship a doubt may have remained after this case as to whether this rule applied equally to British subjects The judgment in the SueSharples petitions should now remove any such doubts

525 However in its publications provided to intending candidates since the 1992 Sykes v Cleary decision the AEC did not find it necessary to make any such distinctions between the United Kingdom and other foreign powers in warning intending candidates to take reasonable steps to divest themselves of dual citizenship before nomination

526 For example on 17 July 1999 some three months before the 1998 federal election the AEC published Electoral Backgrounder No 4 entitled ldquoCandidate Disqualifications Section 44 of the Constitutionrdquo which provided a detailed discussion of the constitutional disqualifications for candidates at federal elections The AEC included information on how British subjects could divest themselves of dual citizenship in paragraph 27 This Backgrounder was made available to the public in hard copy from all AEC offices on the AEC Internet site (wwwaecgovau) and was provided to all candidates as part of the AEC ldquoCandidates Information Kitrdquo

Recommendation 1 That the JSCEM seek a reference to inquire into the powers and functions of the Australian Electoral Commission as expressed in Part II of the Electoral Act and Part I of the Referendum Act and the powers and functions of the Court of Disputed Returns as expressed in Part XXII of the Electoral Act and in Part VIII of the Referendum Act

5116 The recommendation includes reference to the powers and functions of the AEC in the context of the issues raised in part 53 below

52 Constitutional Disqualifications

521 The decision of the High Court in the SueSharples petitions was that any candidate who is a subject or citizen of a foreign power such as the United Kingdom is disqualified at the time of nomination from election to the Parliament That is Ms Heather Hill was disqualified from being elected under section 44(i) of the Constitution

522 This decision was made by the majority members of the Court (Gleeson CJ Gaudron Gummow and Hayne JJ) after they had decided that the Court of Disputed Returns had jurisdiction to hear the petition The other members of the Court (McHugh Kirby and Callinan JJ) who decided that the Court of Disputed Returns had no jurisdiction to hear the petition were not required to form a view on the constitutional qualifications question

523 This decision of the High Court on the interpretation of section 44(i) of the Constitution represents a highly significant statement about the constitutional relationship between the United Kingdom and Australia and in particular makes it very clear that persons holding dual citizenship with the United Kingdom are as equally subject to the constitutional disqualification as persons holding dual citizenship with any other foreign power

524 This may not have been clearly apparent from Sykes v Cleary in 1992 for example where after finding that Mr Phil Cleary was disqualified under section 44(iv) of the Constitution the Court went on to apply section 44(i) of the Constitution to two other candidates Mr Kardamitsis (ALP) and Mr Delacretaz (Liberal Party) who held dual citizenship with Greece and Switzerland respectively and found that they would have also been disqualified Although the Court indicated that all ldquoreasonable stepsrdquo should be taken by candidates to divest themselves of dual citizenship a doubt may have remained after this case as to whether this rule applied equally to British subjects The judgment in the SueSharples petitions should now remove any such doubts

525 However in its publications provided to intending candidates since the 1992 Sykes v Cleary decision the AEC did not find it necessary to make any such distinctions between the United Kingdom and other foreign powers in warning intending candidates to take reasonable steps to divest themselves of dual citizenship before nomination

526 For example on 17 July 1999 some three months before the 1998 federal election the AEC published Electoral Backgrounder No 4 entitled ldquoCandidate Disqualifications Section 44 of the Constitutionrdquo which provided a detailed discussion of the constitutional disqualifications for candidates at federal elections The AEC included information on how British subjects could divest themselves of dual citizenship in paragraph 27 This Backgrounder was made available to the public in hard copy from all AEC offices on the AEC Internet site (wwwaecgovau) and was provided to all candidates as part of the AEC ldquoCandidates Information Kitrdquo

52 Constitutional Disqualifications

521 The decision of the High Court in the SueSharples petitions was that any candidate who is a subject or citizen of a foreign power such as the United Kingdom is disqualified at the time of nomination from election to the Parliament That is Ms Heather Hill was disqualified from being elected under section 44(i) of the Constitution

522 This decision was made by the majority members of the Court (Gleeson CJ Gaudron Gummow and Hayne JJ) after they had decided that the Court of Disputed Returns had jurisdiction to hear the petition The other members of the Court (McHugh Kirby and Callinan JJ) who decided that the Court of Disputed Returns had no jurisdiction to hear the petition were not required to form a view on the constitutional qualifications question

523 This decision of the High Court on the interpretation of section 44(i) of the Constitution represents a highly significant statement about the constitutional relationship between the United Kingdom and Australia and in particular makes it very clear that persons holding dual citizenship with the United Kingdom are as equally subject to the constitutional disqualification as persons holding dual citizenship with any other foreign power

524 This may not have been clearly apparent from Sykes v Cleary in 1992 for example where after finding that Mr Phil Cleary was disqualified under section 44(iv) of the Constitution the Court went on to apply section 44(i) of the Constitution to two other candidates Mr Kardamitsis (ALP) and Mr Delacretaz (Liberal Party) who held dual citizenship with Greece and Switzerland respectively and found that they would have also been disqualified Although the Court indicated that all ldquoreasonable stepsrdquo should be taken by candidates to divest themselves of dual citizenship a doubt may have remained after this case as to whether this rule applied equally to British subjects The judgment in the SueSharples petitions should now remove any such doubts

525 However in its publications provided to intending candidates since the 1992 Sykes v Cleary decision the AEC did not find it necessary to make any such distinctions between the United Kingdom and other foreign powers in warning intending candidates to take reasonable steps to divest themselves of dual citizenship before nomination

526 For example on 17 July 1999 some three months before the 1998 federal election the AEC published Electoral Backgrounder No 4 entitled ldquoCandidate Disqualifications Section 44 of the Constitutionrdquo which provided a detailed discussion of the constitutional disqualifications for candidates at federal elections The AEC included information on how British subjects could divest themselves of dual citizenship in paragraph 27 This Backgrounder was made available to the public in hard copy from all AEC offices on the AEC Internet site (wwwaecgovau) and was provided to all candidates as part of the AEC ldquoCandidates Information Kitrdquo

527 It had previously been recommended by the House of Representatives Standing Committee on Legal and Constitutional Affairs in its Report on Section 44 of the Constitution tabled in Parliament on 25 August 1997 that whilst the AEC should have no role in vetting the constitutional qualifications of candidates the AEC should provide further detailed information to prospective candidates The AEC has for many years published clear warnings in the opening pages of the ldquoCandidates Handbookrdquo on the constitutional disqualifications but in response to this Committeersquos recommendation also published a detailed Electoral Backgrounder for the 1998 federal election

528 Despite the clear explanations in the AEC Candidates Handbook and the Electoral Backgrounder the reproduction of section 44 of the Constitution and the offence provisions of the Electoral Act on the nomination form itself and wide media reportage of candidate disqualifications at previous federal elections (Robert Wood in 1988 Phil Cleary in 1992 and Jackie Kelly in 1996) it was apparent that Ms Heather Hill of Pauline Hansonrsquos One Nation Party failed to take note of these clear warnings at the very least by taking legal advice as to her own personal circumstances prior to her nomination

529 The AEC can do no more than warn candidates of the risks inherent in section 44 of the Constitution It is then the responsibility of candidates to decide whether in good faith they can sign the declaration in the nomination form that they are not constitutionally disqualified

5210 Section 339(3) of the Electoral Act makes it an offence to

(a) make a statement in his or her nomination paper that is false or misleading in a material particular or (b) omit from a statement in his or her nomination paper any matter or thing without which the statement is misleading in a material particular Penalty Imprisonment for 6 months

5211 The AEC is not considering any prosecution of Ms Heather Hill under this provision given the outcome of the SueSharples petitions which resulted in her disqualification from election In any case under section 15B of the Crimes Act 1914 the time limit for any such prosecution has now expired

5212 The AEC has addressed the issue of the constitutional disqualifications in previous submissions to this JSCEM in part 54 of submission No 88 and in paragraphs 413 to 414 and 4245 to 4255 of submission No 176 where it was stated that

a national referendum is needed to amend the Constitution so that the difficulties that currently face intending candidates are properly and finally addressed

53 Costs in Election Petitions

531 During the course of proceedings in Sue v Hill when the Solicitor-General for the Attorney-General (Intervening) submitted that the Court should not award costs against the Commonwealth (as is available under section 360(4) of the Electoral Act) Justice Gaudron made some critical comments from the Bench asserting that the Commonwealth had failed to rectify deficiencies and ambiguities in the legislation that had been drawn to the Commonwealthrsquos attention by the Bench over the years (transcript 12 May 1999 pp 65-66)

532 In fact the AEC has responded to comments about the state of the Electoral Act in past years from both Justice Gaudron and Chief Justice Brennan For example in Hudson v Lee (1993) Justice Gaudron criticised the provisions of the Electoral Act that appeared to encourage petitioners to challenge elections without the benefit of legal advice The AEC then made a submission to the JSCEM recommending appropriate amendments (Attachment 3) which were endorsed in the November 1994 JSCEM Report and carried into law by the Electoral and Referendum Amendment Act 1995 as amendments to sections 356 and 370 of the Electoral Act

533 Further in Snowdon v Dondas (1996) Chief Justice Brennan commented on the difficulties of ldquosplitting petitionsrdquo so that complex evidentiary matters could be heard by the lower courts The AEC then made a submission to the JSCEM recommending appropriate amendments (Attachment 4) which were endorsed in the June 1997 JSCEM Report and carried into law by the Electoral and Referendum Amendment Act 1998 as amendments to section 354 of the Electoral Act

534 It may be that Justice Gaudron was saying in Sue v Hill that the Commonwealth (as distinct from the AEC) should more routinely accept costs in election petitions under section 360(4) of the Electoral Act That is it might be proposed that section 360(4) of the Electoral Act be amended so that the Commonwealth pays costs in all election petitions unless the Court orders otherwise However this might be expected to encourage vexatious and frivolous petitioners and would seem inconsistent with comments made by Justice Gaudron in Hudson v Lee which were to the effect that ill-advised petitions should be restrained from reaching the Court

535 During the court proceedings in Sue v Hill the submissions on costs made by the Solicitor-General for the Attorney-General (Intervening) were on the basis of instructions provided by the Attorney-Generalrsquos office and not by the AEC Following the decision by the Court that the Commonwealth should pay the costs of the other parties (and the AEC bear no costs) the AEC was advised by the Department of Finance and Administration (DOFA) that under new financial arrangements it was now confirmed that the AEC should pay Commonwealth costs in all electoral litigation

536 Until the current financial year the AECrsquos appropriations included separate financial provision for ldquoLegal and Compensationrdquo matters The new financial arrangements for 1999-2000 do not include any such separately identified provision The AEC is therefore concerned that should a number of major cases reach the court after an electoral event and the Court increasingly exercises its power to order costs against the Commonwealth then the AEC could be forced to draw from other internal funding priorities in order to cover the costs awarded against the Commonwealth

537 That is the AEC is not persuaded that it can meet Commonwealth costs in electoral litigation in the future without specifically targeted funding In this context it is worth mentioning that the Government is not averse to specifically targeting funding for the AEC In the 1996 Federal Budget $2 million was removed from AEC funding which resulted in the abolition of the Aboriginal and Torres Strait Islander Electoral Information Service (ATSIEIS) In the 1998 Federal Budget the AEC was provided with additional funding specifically tied to the level of staffing in Divisional Offices

538 In the related matter of Sharples v Hill which was concluded by Justice Callinan on 29 July 1999 after the final proceedings in Sue v Hill were concluded by Chief Justice Gleeson on 2 July 1999 the Constitutional Unit in the office of the Australian Government Solicitor (AGS) advised that the AEC must provide instructions to counsel for the Commonwealth on costs despite the Attorney-Generalrsquos office having done so in Sue v Hill

539 This advice in relation to the provision of instructions for the Commonwealth in Sharples v Hill was on the basis that the office of the Attorney-General only provided instructions in Sue v Hill because of the limited time frame and no-one else being available at the time on the basis that it had been agreed with DOFA that the AEC now appears to be administratively responsible for all Commonwealth costs in electoral litigation and on the basis that the AEC had agreed (for practical reasons) to assume responsibility for the provision of instructions on Commonwealth costs negotiations in Sue v Hill

5310 The outcome was that whilst separate counsel from AGS appeared for the Commonwealth and the AEC on 29 July in the later proceedings in Sharples v Hill the AEC was in fact instructing both counsel behind the scenes (the Commonwealth did not oppose an order for costs) Such legal fictions have the potential to muddle perceptions about the separate roles of the AEC and the Commonwealth in election litigation and to the extent that the structure and provisions of the Electoral Act allow such fictions to continue legislative amendment may be required

5311 The most significant issues arising from the related matters discussed above would appear to be as follows

(a) Whether section 360(4) and related costs provisions of the Electoral Act should be amended to require the Commonwealth to pay costs in all election petitions unless otherwise ordered by the Court

(b) Whether the respective roles of the AEC and the Commonwealth in court proceedings in election petitions should be expressly distinguished in the Electoral Act

(c) Whether the Electoral Act should provide for special financial appropriations to enable the AEC to bear Commonwealth costs in election litigation in the future

5312 In the view of the AEC these questions could be properly addressed within the terms of Recommendation 1 made at paragraph 5115 above in this submission

6 Proceedings in McClure v AEC and related Petitions

61 The McClure Petition

611 On 8 December 1998 Mr Malcolm McClure an unsuccessful independent candidate at the Victorian half-Senate election on 3 October 1998 filed a petition in the Melbourne Registry of the High Court disputing the election of all Senators for the State of Victoria In his petition Mr McClure asserted his entitlement to vote and to be a candidate at the Victorian Senate election and asserted the following two grounds for his petition

That the platform of candidacy of the petitioner was not given media coverage despite requests andor demands for such coverage to the various media bodies and that denial of such media coverage is against the principles of fair democratic elections which is a foundation of the Constitution and that were such coverage granted the result of the election would in the greater probability have been significantly different

That the petitioner was disadvantaged under ss 211 and 211A of the Commonwealth Electoral Act 1918 by not having a right to a ldquoticket voterdquo and that such disadvantage has in the greater probability significantly affected the outcome of this election and that such disadvantagement is against the interests of a true and fair democratic process which forms the foundation of our constitution

612 The petitioner Mr McClure asked the Court to declare the Victorian Senate election void and the six Senators not duly elected The petitioner also sought four other kinds of relief

bull the return from the AEC of his $700 nomination fee (the deposit claim) bull that the Court ldquoinstructrdquo the AEC to make provision for ticket voting for

independent candidates in all future elections for the Senate (the ticket voting claim)

bull that ldquothe Chiefs of Staffs of the media bodies be informally instructed by the Court to make provision for and ensure proper coverage of press releases and policy launches by independent candidates andor that some form of caution be given to said media bodies regarding the intrinsically incumbent responsibilities they have within our democratic process to discern and report important election issues raised by independentsrdquo (the publicity claim) and

bull that leave be granted to join this petition and certain other petitions now pending in the Court ldquoas a class-action before the Full Bench of the High Courtrdquo (the class action claim)

613 Mr McClurersquos petition was identical to four other petitions filed with the High Court in Registries around the nation disputing the half-Senate elections in those States and the Northern Territory The five identical petitions also sought a ldquoclass actionrdquo hearing and were as follows

NT Senate Polke v AEC filed Darwin 2 December 1998 NSW Senate Vaughan v AEC filed Sydney 7 December 1998 WA Senate Garcia v AEC filed Perth 7 December 1998 Vic Senate McClure v AEC filed Melbourne 8 December 1998 Tas Senate Heathorn v AEC filed Hobart 8 December 1998

614 However as it appeared that Mr McClure was willing for his petition to be actioned first as a ldquotest caserdquo for the other four petitions a summons was filed by the AEC on 10 March 1999 for a directions hearing before the High Court in McClure v AEC in Melbourne on 29 March

615 The AEC summons sought orders that the petition be dismissed or alternatively that the petition be stayed on the ground that there was no reasonable or probable cause of action or suit or that the proceeding was an abuse of the powers of the Court In support of the summons an affidavit was filed with the Court by Mr Geoffrey McCarthy of the Australian Government Solicitor (AGS) on behalf of the AEC

616 Because the petition might have raised constitutional matters a Notice of a Constitutional Matter under section 78B of the Judiciary Act 1903 was filed with the Court by the AEC on 17 March and provided to the petitioner and to the Attorneys-General for the Commonwealth and the States and Territories

617 On 29 March Mr Geoffrey McCarthy of AGS filed an affidavit with the Court advising that he was acting on behalf of the AEC applying for the orders sought in the summons of 10 March and advising that the written submissions of the AEC had been forwarded to the Court and to the petitioner on 25 March

618 At the directions hearing on the McClure petition on 29 March 1999 in Melbourne before Justice Hayne of the High Court sitting as the Court of Disputed Returns Mr Gageler of counsel appeared for the AEC and Mr McClure represented himself

619 Justice Hayne immediately registered his concern that 384 people had entered an appearance in the petition but had apparently not been advised of the hearings on that day His Honour was concerned that these people should have the opportunity to be heard in the proceedings should they wish to do so The respondent to the petition the AEC had not been made aware of these 384 appearances ldquoin support of the petitionerrdquo until immediately prior to the commencement of the court proceedings

6110 Justice Hayne made the following orders on 29 March 1999

1 Adjourn further hearing of summons dated 10 March 1999 to 27 April at 930 am Melbourne 2 Direct that notice of the application made by that summons shall be sufficiently given by the Australian Electoral Commission giving notice to the other parties to the proceedings upon the petition of the further hearing of that summons by posting on or before 7 April 1999 by prepaid ordinary post to the address for service of each of the parties to the proceedings upon the petition (other than the petitioner and respondent) a notice substantially in the form of the schedule to this order 3 Reserve costs 4 Certify for counsel

6111 In compliance with the orders of the Court by letters on 31 March and 1 April Mr Geoffrey McCarthy of the AGS acting for the AEC wrote to each of the 384 persons who had entered an appearance advising them of the proceedings and attaching copy of the Court orders and the relevant notice

6112 From around 6 April the office of the AGS in Canberra and the Court Registry in Melbourne received an avalanche of phone calls or correspondence from these persons complaining that they knew nothing about the petition had never met Mr McClure and to their knowledge had not signed any document entering an appearance in the petition Some of them recalled signing a ldquopetitionrdquo in the street but thought it had been about other matters such as animal welfare or suburban parking restrictions Complaints were also made to the AEC directly in one instance claiming that the AEC had released a personrsquos name in contravention of the Privacy Act (which was not the case) These persons were referred by the AGS for further information either to Mr McClure the petitioner or to the Court Registry

6113 On 9 April Mr McCarthy of the AGS on behalf of the AEC wrote a further letter to these 384 persons outlining the grounds of the McClure petition explaining that it was Mr McClure who had filed their Notices of Appearance with the Court on their behalf and advising that the AEC was the respondent to the petition and had no part in them becoming involved in the matter On 26 April Mr McCarthy filed an affidavit with the Court advising the action taken in compliance with the orders of the Court

6114 On 27 April the hearing of the AEC summons to have the petition dismissed or stayed resumed before Justice Hayne in Melbourne Mr Gageler of counsel appeared for the AEC with Mr Geoffrey McCarthy and Mr McClure represented himself Only one of the 384 persons Mr McClure claimed supported his petition appeared in person Mr Cecil Murgatroyd made a short submission in support of the McClure petition towards the end of the hearing Another person Ms Kelly Buzza was represented by Mr Terry Shiels who submitted that she had not understood that the documents she had signed constituted an entry of appearance to the petition

6115 Largely as a matter of procedural fairness to Mr McClure Mr Gageler for the AEC took the Court through the various relevant provisions of the Electoral Act and summarised the arguments as to why the petition failed to comply with section 355(a) of the Act which requires the petitioner to set out the facts relied on to invalidate the election and section 355(aa) of the Act which requires the petitioner to set out those facts with sufficient particularity In reply Mr McClure did not really address the submissions of the AEC but instead gave more of a political speech about the alleged unfairness of independent Senate candidates being denied access to group ticket voting

6116 In the course of the hearings Mr McClure sought to amend his petition by alleging that sections 211 and 211A of the Electoral Act which deal with ticket voting for Senate elections are not valid laws of the Parliament because there was no proper Royal Assent to the bills by which those sections were inserted in the Act Mr McClure asserted that Australia became a sovereign and independent nation at or after the time of the Treaty of Versailles and accordingly Royal Assent to or on behalf of a person who is the sovereign of the United Kingdom was of no effect

6117 Justice Hayne gave Mr McClure several opportunities to ensure that he had addressed the Court on everything he wished to say and repeated back to Mr McClure his understanding of Mr McClurersquos submissions to ensure that there was no misunderstanding On each occasion Mr McClure agreed that the Court understood his point of view On several occasions Justice Hayne also made it clear to Mr McClure that ldquothere would be no tomorrowrdquo and that he should make sure he covered everything in support of his allegations and claims Justice Hayne then reserved his decision

6118 On 24 June 1999 Justice Hayne delivered his decision ordering that the McClure petition be dismissed and that the petitioner Mr McClure pay the costs of the respondent the AEC

6119 In his decision in McClure v AEC (1999) 73 ALJR 1086 at Attachment 5 Justice Hayne formally refused Mr McClurersquos application at the time of the hearing to amend his petition so as to allege that sections 211 and 211A of the Electoral Act were not valid laws of the Parliament His Honour concluded that the law to be applied by the courts is to be found in covering clause 5 to the Constitution and said further

In so far as the petitioner relies on some alleged deficiency in the signification of Royal Assent it is ss 58 59 and 60 of the Constitution that deal with the ways in which the Royal Assent may be given to bills passed by the other elements of the Parliament So far as is now relevant s 58 governs It provides that the Governor-General ldquoshall declare according to his discretion but subject to this Constitution that he assents in the Queenrsquos namerdquo There is nothing to suggest that that this was not done in the case of the Acts that introduced s 211 and s 211A into the Act The history of the international dealings to which the petitioner referred is not the point

It is in these circumstances not necessary to consider whether ss 355(e) and 358 of the Act preclude amendment because it is sought more than 40 days after the return of the writ The respondentrsquos reliance on those provisions assumes that they are valid The petitionerrsquos proposed amendment might appear to attempt to cast doubt on that validity But as I have indicated earlier the arguments against validity must fail and the amendments proposed would be futile

6120 In dismissing the petition Justice Hayne dealt firstly in his judgment with the petitionerrsquos claims for relief other than the actual voiding of the election The first of these claims was the ldquodeposit claimrdquo for the return of the petitionerrsquos Senate nomination deposit of $700

The petitioner seeks the return of the sum deposited by him in accordance with s 170(2) of the Act hellip He characterises this deposit as ldquoconfirmation of a contractrdquo between the petitioner and the respondent and says in effect that consideration for the contract wholly failed (or there was no meeting of minds) because the electoral process was not as he supposed it to be ndash one in which ldquono one candidate would be disadvantaged abovehellipanotherrdquo

There are at least two answers to this contention First the statutory requirement that a deposit is paid by or on behalf of the person nominated is not a requirement that leads to the formation of a contract between the respondent and the nominee or a person who pays the deposit on behalf of the nominee The Act prescribes the circumstances in which the deposit is to be forfeited and those circumstances came to pass in the petitionerrsquos case ndash the number of votes polled in his favour as first preferences was less than 4 per cent of the total number of votes polled as first preferences Questions of consideration failure of consideration or meeting of the minds simply do not arise and the claim must therefore fail

Secondly it may be very much doubted that the Court has power to order the return of a candidatersquos deposit No such power is included in the list of powers of the Court given by s 360(1) and although that list is not exhaustive the petitioner was not able to point to any basis for concluding that the Court does not have the power for which he contends This claim must fail

6121 The second of the petitionerrsquos claims for relief other than the voiding of the election was the ldquopublicity claimrdquo which Justice Hayne dealt with as follows

It is not clear what the petitioner means when he says that the Court should ldquoinformally instructrdquo the chiefs of staff of media bodies about how they should act in the future If he seeks to have the Court give some advice to these persons it is enough to say that this is not the Courtrsquos function If he seeks to have the Court make some order about future conduct there is no basis in the Act for concluding that the Court has any power to do so There being no power to do so the further questions that might then have arisen about framing an order with sufficient certainty need not be considered The relief claimed cannot be given

6122 The third of the petitionerrsquos claims for relief other than the voiding of the election was the ldquoticket votingrdquo claim which Justice Hayne dealt with as follows

For like reasons there is no basis upon which the Court might lawfully ldquoinstructrdquo the respondent about the conduct of future elections Future elections must be conducted according to law The relief claimed cannot be given

6123 The fourth of the petitionerrsquos claims for relief other than the voiding of the election was the ldquoclass actionrdquo claim which Justice Hayne dealt with as follows

The question of joining this petition to other petitions pending in the Court as some form of class action is a question that relates only to how this petition is to be dealt with it is not a question that touches the merits of the complaints that the petitioner makes It is therefore not a question that affects whether the orders sought by the respondent should now be made That being said however it is to be recalled that in Muldowney v Australian Electoral Commission Brennan ACJ held that the jurisdiction to declare an election void on the petition of a person qualified to vote at that election is a power limited to those elections in which the petitioner was entitled to vote and did not extend to power to declare the entirety of a general election void

It may be as the respondent contended that the attempt to have petitions form a class action was to try to overcome these decisions But the validity and force of the respondentrsquos contention in this regard would depend upon what was said to follow from ldquojoiningrdquo petitions as a ldquoclass actionrdquo The petitioner pointed to no provision of the Act or the High Court Rules that contemplates joining petitions as a class action and the point was not examined in any detail in the course of argument Because these are not matters that affect whether the orders sought by the respondent should be made it is not necessary to explore them further

6124 The central claim for relief by the petitioner was the claim to void the half-Senate election for the State of Victoria and declare the six Victorian Senators not duly elected Justice Hayne described the argument submitted by the AEC against the petition as follows

The principal focus of argument was on the petitionerrsquos claim that the election in question should be declared void As to that the respondent submitted that the petition should be stayed or dismissed because first it does not comply with s 355 of the Act secondly it alleges no ldquoillegal practicerdquo as that term is defined in the Act (a breach of the Act or regulations) and therefore the Court has no jurisdiction to avoid the election and thirdly it fails to raise any ground which would justify the avoidance of the election it seeks to challenge

6125 His Honour then discussed the various relevant provisions of section 355 of the Electoral Act which sets down the requirements for a petition and section 362(3) of the Act which provides for the voiding of an election for illegal practices Justice Hayne made the following comment on section 362(3)

In Webster v Deahm Gaudron J held that hellip

ldquothe very minimum assertion necessary to constitute a fact which will lsquoinvalidate [an] election or returnrsquo for the purposes of s 355(a) of the Act is one raising a matter or matters by which lsquothe election was likely to be affectedrsquordquo

No doubt it was in light of this that the respondent submitted that a petition must be dismissed if it does not set out facts which if proved would establish that there are available grounds for invalidating the election and the election was likely to be affected on those grounds

That submission proceeded from the premise that s 362(3) is an exhaustive statement of the circumstances in which the Court may declare an election void Put in that way the submission may very well be stated too broadly In Hudson v Lee Gaudron J held that s 352(1) of the Act identified exhaustively the practices which might properly found a petition under Div 1 Nevertheless the respondent submitted that I need not form any concluded view on that question because (so it was submitted) the facts alleged in the petition if established would not entitle the petitioner to an order avoiding the election

6126 Justice Hayne then turned to the facts that were alleged by the petitioner In response to the first complaint about the lack of media coverage for the petitioner His Honour said the following

The first complaint depends upon the contention that there has been some breach of an implied freedom of communication in relation to the political and electoral processhellipThe short answer to this first complaint is that the freedom of communication implied in the Constitution is not an obligation to publicise The freedom is a freedom from government action it is not a right to require others to provide a means of communication The petitionerrsquos case depends upon him having some right to require others to disseminate his views But as was said in Lange v Australian Broadcasting Corporation

ss 7 and 24 and the related sections of the Constitution necessarily protect that freedom of communication between the people concerning political or government matters which enables the people to exercise a free and informed choice as electors Those sections do not confer personal rights on individuals Rather they preclude the curtailment of the protected freedom by the exercise of legislative or executive power As Deane J said in Theophanous they are lsquoa limitation or confinement of laws and powers [which] gives rise to a pro tanto immunity on the part of the citizen from being adversely affected by those laws or by the exercise of those powers rather than to a ldquorightrdquo in the strict sensersquo In Cunliffe v The Commonwealth Brennan J pointed out that the freedom confers no rights on individuals and to the extent that the freedom rests upon implication that implication defines the nature an extent of the freedom His Honour said

lsquoThe implication is negative in nature it invalidates laws and consequently creates an area of immunity from legal control particularly from legislative controlrsquordquo

6127 In response to the second complaint about the application of the provisions of the Act dealing with the grouping of Senate candidates Justice Hayne reviewed previous court decisions on this issue as follows

The constitutional validity of provisions like s 211 has twice been considered ndash in McKenzie v The Commonwealth and in Abbotto v Australian Electoral Commission At the time of McKenzie the Act was cast in slightly different terms and did not contain s 211A Gibbs CJ rejected a submission that the group voting system then provided for the election of Senators was contrary to s 7 or 16 of the Constitution and held that the provisions then in force did not ldquoso [offend] democratic principles as to render the sections beyond the power of the Parliament to enactrdquo In Abbotto Dawson J held that there was no substance to the contention that the voting system provided for by ss 211 and 211A contravened s 10 of the Constitution The petition in this matter did not explicitly challenge the constitutional validity of ss 211 and 211A The petitioner sought to add such a challenge by the amendments I have mentioned earlier but for the reasons I have set out that challenge is not sustainable

6128 His Honour then dismissed the petitionerrsquos arguments in relation to ticket voting for Senate elections as follows

The petitioner alleges that the provisions are ldquounfairrdquo and asserts that s 211 (and perhaps s 211A) is not a reasonably proportionate regulation of the subject matter He prays in aid of this submission that the Court is obliged by s 364 to be ldquoguided by the substantial merits and good conscience of each case without regard to legal forms or technicalitiesrdquo

Read in the context of the Act s 364 and its reference to ldquosubstantial merits and good consciencerdquo is to be understood as directing the Court about how it should set about its task of deciding the issues presented under the Act by the petition it does not give the Court some power to rewrite the Act to accord with some abstract standard of fairness If the provisions made in the Act for election of Senators are valid laws of the Parliament it is not to the point for the Court to attempt to characterise those provisions as ldquofairrdquo or ldquounfairrdquo In particular s 364 gives no warrant for the Court declaring void an election conducted in accordance with valid legislative requirements

Thus if ss 211 and 211A are valid laws of the Parliament an election conducted in accordance with these provisions (and the other applicable provisions of the Act) cannot be held to be void The asserted challenge to validity is as I have said without foundation It follows that the second of the petitionerrsquos complaints fails

6129 Finally Justice Hayne made comment on the conduct of the proceedings by the petitioner in entering appearances for 384 other persons who he claimed supported his petition

Before parting with this matter it is as well to say something of the way in which the provisions permitting the entry of appearance by persons entitled to vote at the election in question have operated in this case As I have noted earlier more than 380 appearances were filed It goes without saying that the number of persons appearing made the conduct of the proceeding more difficult and costly than it would have been if the only parties to it were the petitioner and the respondent More troubling were the suggestions in an affidavit filed on behalf of the respondent first that some of those who entered an appearance may have been misled about what they were doing (or at least may not have understood the significance of the step they were taking) and second that some persons given notice of the proceeding because notice of appearance had been given in their name denied that they knew anything at all about the matter and denied entering an appearance I have however embarked on no inquiry about these assertions and make no finding about them

6130 His Honour concluded his judgment by dismissing the petition and ordered that the petitioner pay the costs of the respondent the AEC

6131 Following the conclusion of this case the AGS referred the matter of the 384 appearances filed with the Court by Mr McClure ostensibly in support of his petition to the Australian Federal Police for investigation of a possible offence under the Crimes Act 1914

62 The Related Petitions

621 The McClure v AEC petition was identical to four other petitions filed with the High Court in Registries around the nation disputing the half-Senate elections in those States and the Senate election for the Northern Territory The five identical petitions also sought a ldquoclass actionrdquo hearing and were as follows

NT Senate Polke v AEC filed Darwin 2 December 1998 NSW Senate Vaughan v AEC filed Sydney 7 December 1998 WA Senate Garcia v AEC filed Perth 7 December 1998 Vic Senate McClure v AEC filed Melbourne 8 December 1998 Tas Senate Heathorn v AEC filed Hobart 8 December 1998

622 On the dismissal of the McClure v AEC petition by Justice Hayne on 24 June 1999 Mr Geoffrey McCarthy of AGS acting on behalf of the AEC filed summonses and affidavits on 8 July 1999 seeking orders in each of remaining four petitions that the petitions be dismissed or stayed

623 On 9 July 1999 the four petitioners all unsuccessful independent Senate candidates were served by Mr McCarthy of AGS on behalf of the AEC with similar summonses and affidavits to those filed in the McClure petition by the AEC The petitioners were further advised that should they notify Mr McCarthy before 16 July 1999 of their intention not to oppose the application by the AEC for dismissal of the petitions then the AEC would not seek costs against them

624 The petitioners Mr Garcia Mr Polke and Mr Vaughan advised Mr McCarthy on 14 July 1999 that they would not oppose the applications by the AEC for the dismissal of their petitions The fourth petitioner Mr Heathorn advised Mr McCarthy on 21 July 1999 that he would not oppose the AEC application for dismissal The petitioners also advised the Court of their intentions not to oppose the AEC application

625 On 22 July 1999 before Justice Hayne of the Court of Disputed Returns in Canberra a video-link was established with Perth Darwin Sydney and Hobart to enable the petitioners to be heard if they so wished Mr Gageler of counsel represented the AEC with Mr Geoffrey McCarthy and there was no appearance by the petitioners or by any of the other persons who had filed appearances in support of the petitioners Justice Hayne delivered the same decision in each of the petition as follows

The petition is not materially different from the petition I considered in the matter of McClure v Australian Electoral Commission (1999) 163 ALR 734 For the reasons I gave in that matter this petition cannot succeed It is dismissed The respondent does not seek costs and there is no order as to costs

7 Implications of the McClure Decision

71 Senate Group Ticket Voting

711 It is not unusual for independent Senate candidates to belatedly discover generally at the time of nomination that they are not entitled to appear on the ballot paper as a group ldquoabove the linerdquo and thereby take advantage of the ticket voting system for the Senate This may give rise to some protest at the ldquofairnessrdquo of sections 211 and 211A of the Electoral Act and can result in petitions to the Court of Disputed Returns after the election on the grounds that the law is both unconstitutional and ldquounfairrdquo to independent candidates

712 In McKenzie v The Commonwealth (1984) 59 ALJR 190 and in Abbotto v AEC (1997) 71 ALJR 675 the High Court has confirmed that the Senate group ticket voting system is not unconstitutional In McKenzie Gibbs CJ held that that the relevant provisions did not ldquoso offend democratic principles as to render the sections beyond the power of the Parliament to enactrdquo In Abbotto Dawson J held that the relevant provisions did not contravene section 10 of the Constitution McClure v AEC (1999) 73 ALJR 1086 is in accordance with these previous decisions in relation to the constitutionality of the Senate group ticket voting system

713 Further confirmation of the validity of the Senate group voting system is evidenced by the dismissal by the Federal Court of an injunction application on similar grounds by Mr Hodgetts just prior to polling day for the 1998 federal election (Hodgetts v AEC Dowsett J 2 October 1998 unreported) (see paras 1226 to 1228 of AEC submission No 88 of 12 March 1999)

714 In the McClure petition and proceedings it was also claimed that the provisions are ldquounfairrdquo to independents and that section 364 of the Electoral Act required the Court to make a finding that the election was therefore void Section 364 of the Electoral Act is entitled ldquoReal justice to be observedrdquo and provides as follows

The Court shall be guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities or whether the evidence before it is in accordance with the law of evidence or not

715 Petitioners occasionally invoke this provision in their submissions to the Court arguing that it means that elements of the rule of law should not apply to proceedings in election petitions and that the Court should take into its consideration whether or not a particular law is ldquofairrdquo or ldquounfairrdquo As noted by Gleeson CJ Gummow and Hayne JJ in Sue v Hill (1999) 73 ALJR 1016 at 1025

Provisions of this typehellipdo not exonerate the Court from the application of substantive rules of law and are consistent with and indeed require the application of the rules of procedural fairness

53 Costs in Election Petitions

531 During the course of proceedings in Sue v Hill when the Solicitor-General for the Attorney-General (Intervening) submitted that the Court should not award costs against the Commonwealth (as is available under section 360(4) of the Electoral Act) Justice Gaudron made some critical comments from the Bench asserting that the Commonwealth had failed to rectify deficiencies and ambiguities in the legislation that had been drawn to the Commonwealthrsquos attention by the Bench over the years (transcript 12 May 1999 pp 65-66)

532 In fact the AEC has responded to comments about the state of the Electoral Act in past years from both Justice Gaudron and Chief Justice Brennan For example in Hudson v Lee (1993) Justice Gaudron criticised the provisions of the Electoral Act that appeared to encourage petitioners to challenge elections without the benefit of legal advice The AEC then made a submission to the JSCEM recommending appropriate amendments (Attachment 3) which were endorsed in the November 1994 JSCEM Report and carried into law by the Electoral and Referendum Amendment Act 1995 as amendments to sections 356 and 370 of the Electoral Act

533 Further in Snowdon v Dondas (1996) Chief Justice Brennan commented on the difficulties of ldquosplitting petitionsrdquo so that complex evidentiary matters could be heard by the lower courts The AEC then made a submission to the JSCEM recommending appropriate amendments (Attachment 4) which were endorsed in the June 1997 JSCEM Report and carried into law by the Electoral and Referendum Amendment Act 1998 as amendments to section 354 of the Electoral Act

534 It may be that Justice Gaudron was saying in Sue v Hill that the Commonwealth (as distinct from the AEC) should more routinely accept costs in election petitions under section 360(4) of the Electoral Act That is it might be proposed that section 360(4) of the Electoral Act be amended so that the Commonwealth pays costs in all election petitions unless the Court orders otherwise However this might be expected to encourage vexatious and frivolous petitioners and would seem inconsistent with comments made by Justice Gaudron in Hudson v Lee which were to the effect that ill-advised petitions should be restrained from reaching the Court

535 During the court proceedings in Sue v Hill the submissions on costs made by the Solicitor-General for the Attorney-General (Intervening) were on the basis of instructions provided by the Attorney-Generalrsquos office and not by the AEC Following the decision by the Court that the Commonwealth should pay the costs of the other parties (and the AEC bear no costs) the AEC was advised by the Department of Finance and Administration (DOFA) that under new financial arrangements it was now confirmed that the AEC should pay Commonwealth costs in all electoral litigation

536 Until the current financial year the AECrsquos appropriations included separate financial provision for ldquoLegal and Compensationrdquo matters The new financial arrangements for 1999-2000 do not include any such separately identified provision The AEC is therefore concerned that should a number of major cases reach the court after an electoral event and the Court increasingly exercises its power to order costs against the Commonwealth then the AEC could be forced to draw from other internal funding priorities in order to cover the costs awarded against the Commonwealth

537 That is the AEC is not persuaded that it can meet Commonwealth costs in electoral litigation in the future without specifically targeted funding In this context it is worth mentioning that the Government is not averse to specifically targeting funding for the AEC In the 1996 Federal Budget $2 million was removed from AEC funding which resulted in the abolition of the Aboriginal and Torres Strait Islander Electoral Information Service (ATSIEIS) In the 1998 Federal Budget the AEC was provided with additional funding specifically tied to the level of staffing in Divisional Offices

538 In the related matter of Sharples v Hill which was concluded by Justice Callinan on 29 July 1999 after the final proceedings in Sue v Hill were concluded by Chief Justice Gleeson on 2 July 1999 the Constitutional Unit in the office of the Australian Government Solicitor (AGS) advised that the AEC must provide instructions to counsel for the Commonwealth on costs despite the Attorney-Generalrsquos office having done so in Sue v Hill

539 This advice in relation to the provision of instructions for the Commonwealth in Sharples v Hill was on the basis that the office of the Attorney-General only provided instructions in Sue v Hill because of the limited time frame and no-one else being available at the time on the basis that it had been agreed with DOFA that the AEC now appears to be administratively responsible for all Commonwealth costs in electoral litigation and on the basis that the AEC had agreed (for practical reasons) to assume responsibility for the provision of instructions on Commonwealth costs negotiations in Sue v Hill

5310 The outcome was that whilst separate counsel from AGS appeared for the Commonwealth and the AEC on 29 July in the later proceedings in Sharples v Hill the AEC was in fact instructing both counsel behind the scenes (the Commonwealth did not oppose an order for costs) Such legal fictions have the potential to muddle perceptions about the separate roles of the AEC and the Commonwealth in election litigation and to the extent that the structure and provisions of the Electoral Act allow such fictions to continue legislative amendment may be required

5311 The most significant issues arising from the related matters discussed above would appear to be as follows

(a) Whether section 360(4) and related costs provisions of the Electoral Act should be amended to require the Commonwealth to pay costs in all election petitions unless otherwise ordered by the Court

(b) Whether the respective roles of the AEC and the Commonwealth in court proceedings in election petitions should be expressly distinguished in the Electoral Act

(c) Whether the Electoral Act should provide for special financial appropriations to enable the AEC to bear Commonwealth costs in election litigation in the future

5312 In the view of the AEC these questions could be properly addressed within the terms of Recommendation 1 made at paragraph 5115 above in this submission

6 Proceedings in McClure v AEC and related Petitions

61 The McClure Petition

611 On 8 December 1998 Mr Malcolm McClure an unsuccessful independent candidate at the Victorian half-Senate election on 3 October 1998 filed a petition in the Melbourne Registry of the High Court disputing the election of all Senators for the State of Victoria In his petition Mr McClure asserted his entitlement to vote and to be a candidate at the Victorian Senate election and asserted the following two grounds for his petition

That the platform of candidacy of the petitioner was not given media coverage despite requests andor demands for such coverage to the various media bodies and that denial of such media coverage is against the principles of fair democratic elections which is a foundation of the Constitution and that were such coverage granted the result of the election would in the greater probability have been significantly different

That the petitioner was disadvantaged under ss 211 and 211A of the Commonwealth Electoral Act 1918 by not having a right to a ldquoticket voterdquo and that such disadvantage has in the greater probability significantly affected the outcome of this election and that such disadvantagement is against the interests of a true and fair democratic process which forms the foundation of our constitution

612 The petitioner Mr McClure asked the Court to declare the Victorian Senate election void and the six Senators not duly elected The petitioner also sought four other kinds of relief

bull the return from the AEC of his $700 nomination fee (the deposit claim) bull that the Court ldquoinstructrdquo the AEC to make provision for ticket voting for

independent candidates in all future elections for the Senate (the ticket voting claim)

bull that ldquothe Chiefs of Staffs of the media bodies be informally instructed by the Court to make provision for and ensure proper coverage of press releases and policy launches by independent candidates andor that some form of caution be given to said media bodies regarding the intrinsically incumbent responsibilities they have within our democratic process to discern and report important election issues raised by independentsrdquo (the publicity claim) and

bull that leave be granted to join this petition and certain other petitions now pending in the Court ldquoas a class-action before the Full Bench of the High Courtrdquo (the class action claim)

613 Mr McClurersquos petition was identical to four other petitions filed with the High Court in Registries around the nation disputing the half-Senate elections in those States and the Northern Territory The five identical petitions also sought a ldquoclass actionrdquo hearing and were as follows

NT Senate Polke v AEC filed Darwin 2 December 1998 NSW Senate Vaughan v AEC filed Sydney 7 December 1998 WA Senate Garcia v AEC filed Perth 7 December 1998 Vic Senate McClure v AEC filed Melbourne 8 December 1998 Tas Senate Heathorn v AEC filed Hobart 8 December 1998

614 However as it appeared that Mr McClure was willing for his petition to be actioned first as a ldquotest caserdquo for the other four petitions a summons was filed by the AEC on 10 March 1999 for a directions hearing before the High Court in McClure v AEC in Melbourne on 29 March

615 The AEC summons sought orders that the petition be dismissed or alternatively that the petition be stayed on the ground that there was no reasonable or probable cause of action or suit or that the proceeding was an abuse of the powers of the Court In support of the summons an affidavit was filed with the Court by Mr Geoffrey McCarthy of the Australian Government Solicitor (AGS) on behalf of the AEC

616 Because the petition might have raised constitutional matters a Notice of a Constitutional Matter under section 78B of the Judiciary Act 1903 was filed with the Court by the AEC on 17 March and provided to the petitioner and to the Attorneys-General for the Commonwealth and the States and Territories

617 On 29 March Mr Geoffrey McCarthy of AGS filed an affidavit with the Court advising that he was acting on behalf of the AEC applying for the orders sought in the summons of 10 March and advising that the written submissions of the AEC had been forwarded to the Court and to the petitioner on 25 March

618 At the directions hearing on the McClure petition on 29 March 1999 in Melbourne before Justice Hayne of the High Court sitting as the Court of Disputed Returns Mr Gageler of counsel appeared for the AEC and Mr McClure represented himself

619 Justice Hayne immediately registered his concern that 384 people had entered an appearance in the petition but had apparently not been advised of the hearings on that day His Honour was concerned that these people should have the opportunity to be heard in the proceedings should they wish to do so The respondent to the petition the AEC had not been made aware of these 384 appearances ldquoin support of the petitionerrdquo until immediately prior to the commencement of the court proceedings

6110 Justice Hayne made the following orders on 29 March 1999

1 Adjourn further hearing of summons dated 10 March 1999 to 27 April at 930 am Melbourne 2 Direct that notice of the application made by that summons shall be sufficiently given by the Australian Electoral Commission giving notice to the other parties to the proceedings upon the petition of the further hearing of that summons by posting on or before 7 April 1999 by prepaid ordinary post to the address for service of each of the parties to the proceedings upon the petition (other than the petitioner and respondent) a notice substantially in the form of the schedule to this order 3 Reserve costs 4 Certify for counsel

6111 In compliance with the orders of the Court by letters on 31 March and 1 April Mr Geoffrey McCarthy of the AGS acting for the AEC wrote to each of the 384 persons who had entered an appearance advising them of the proceedings and attaching copy of the Court orders and the relevant notice

6112 From around 6 April the office of the AGS in Canberra and the Court Registry in Melbourne received an avalanche of phone calls or correspondence from these persons complaining that they knew nothing about the petition had never met Mr McClure and to their knowledge had not signed any document entering an appearance in the petition Some of them recalled signing a ldquopetitionrdquo in the street but thought it had been about other matters such as animal welfare or suburban parking restrictions Complaints were also made to the AEC directly in one instance claiming that the AEC had released a personrsquos name in contravention of the Privacy Act (which was not the case) These persons were referred by the AGS for further information either to Mr McClure the petitioner or to the Court Registry

6113 On 9 April Mr McCarthy of the AGS on behalf of the AEC wrote a further letter to these 384 persons outlining the grounds of the McClure petition explaining that it was Mr McClure who had filed their Notices of Appearance with the Court on their behalf and advising that the AEC was the respondent to the petition and had no part in them becoming involved in the matter On 26 April Mr McCarthy filed an affidavit with the Court advising the action taken in compliance with the orders of the Court

6114 On 27 April the hearing of the AEC summons to have the petition dismissed or stayed resumed before Justice Hayne in Melbourne Mr Gageler of counsel appeared for the AEC with Mr Geoffrey McCarthy and Mr McClure represented himself Only one of the 384 persons Mr McClure claimed supported his petition appeared in person Mr Cecil Murgatroyd made a short submission in support of the McClure petition towards the end of the hearing Another person Ms Kelly Buzza was represented by Mr Terry Shiels who submitted that she had not understood that the documents she had signed constituted an entry of appearance to the petition

6115 Largely as a matter of procedural fairness to Mr McClure Mr Gageler for the AEC took the Court through the various relevant provisions of the Electoral Act and summarised the arguments as to why the petition failed to comply with section 355(a) of the Act which requires the petitioner to set out the facts relied on to invalidate the election and section 355(aa) of the Act which requires the petitioner to set out those facts with sufficient particularity In reply Mr McClure did not really address the submissions of the AEC but instead gave more of a political speech about the alleged unfairness of independent Senate candidates being denied access to group ticket voting

6116 In the course of the hearings Mr McClure sought to amend his petition by alleging that sections 211 and 211A of the Electoral Act which deal with ticket voting for Senate elections are not valid laws of the Parliament because there was no proper Royal Assent to the bills by which those sections were inserted in the Act Mr McClure asserted that Australia became a sovereign and independent nation at or after the time of the Treaty of Versailles and accordingly Royal Assent to or on behalf of a person who is the sovereign of the United Kingdom was of no effect

6117 Justice Hayne gave Mr McClure several opportunities to ensure that he had addressed the Court on everything he wished to say and repeated back to Mr McClure his understanding of Mr McClurersquos submissions to ensure that there was no misunderstanding On each occasion Mr McClure agreed that the Court understood his point of view On several occasions Justice Hayne also made it clear to Mr McClure that ldquothere would be no tomorrowrdquo and that he should make sure he covered everything in support of his allegations and claims Justice Hayne then reserved his decision

6118 On 24 June 1999 Justice Hayne delivered his decision ordering that the McClure petition be dismissed and that the petitioner Mr McClure pay the costs of the respondent the AEC

6119 In his decision in McClure v AEC (1999) 73 ALJR 1086 at Attachment 5 Justice Hayne formally refused Mr McClurersquos application at the time of the hearing to amend his petition so as to allege that sections 211 and 211A of the Electoral Act were not valid laws of the Parliament His Honour concluded that the law to be applied by the courts is to be found in covering clause 5 to the Constitution and said further

In so far as the petitioner relies on some alleged deficiency in the signification of Royal Assent it is ss 58 59 and 60 of the Constitution that deal with the ways in which the Royal Assent may be given to bills passed by the other elements of the Parliament So far as is now relevant s 58 governs It provides that the Governor-General ldquoshall declare according to his discretion but subject to this Constitution that he assents in the Queenrsquos namerdquo There is nothing to suggest that that this was not done in the case of the Acts that introduced s 211 and s 211A into the Act The history of the international dealings to which the petitioner referred is not the point

It is in these circumstances not necessary to consider whether ss 355(e) and 358 of the Act preclude amendment because it is sought more than 40 days after the return of the writ The respondentrsquos reliance on those provisions assumes that they are valid The petitionerrsquos proposed amendment might appear to attempt to cast doubt on that validity But as I have indicated earlier the arguments against validity must fail and the amendments proposed would be futile

6120 In dismissing the petition Justice Hayne dealt firstly in his judgment with the petitionerrsquos claims for relief other than the actual voiding of the election The first of these claims was the ldquodeposit claimrdquo for the return of the petitionerrsquos Senate nomination deposit of $700

The petitioner seeks the return of the sum deposited by him in accordance with s 170(2) of the Act hellip He characterises this deposit as ldquoconfirmation of a contractrdquo between the petitioner and the respondent and says in effect that consideration for the contract wholly failed (or there was no meeting of minds) because the electoral process was not as he supposed it to be ndash one in which ldquono one candidate would be disadvantaged abovehellipanotherrdquo

There are at least two answers to this contention First the statutory requirement that a deposit is paid by or on behalf of the person nominated is not a requirement that leads to the formation of a contract between the respondent and the nominee or a person who pays the deposit on behalf of the nominee The Act prescribes the circumstances in which the deposit is to be forfeited and those circumstances came to pass in the petitionerrsquos case ndash the number of votes polled in his favour as first preferences was less than 4 per cent of the total number of votes polled as first preferences Questions of consideration failure of consideration or meeting of the minds simply do not arise and the claim must therefore fail

Secondly it may be very much doubted that the Court has power to order the return of a candidatersquos deposit No such power is included in the list of powers of the Court given by s 360(1) and although that list is not exhaustive the petitioner was not able to point to any basis for concluding that the Court does not have the power for which he contends This claim must fail

6121 The second of the petitionerrsquos claims for relief other than the voiding of the election was the ldquopublicity claimrdquo which Justice Hayne dealt with as follows

It is not clear what the petitioner means when he says that the Court should ldquoinformally instructrdquo the chiefs of staff of media bodies about how they should act in the future If he seeks to have the Court give some advice to these persons it is enough to say that this is not the Courtrsquos function If he seeks to have the Court make some order about future conduct there is no basis in the Act for concluding that the Court has any power to do so There being no power to do so the further questions that might then have arisen about framing an order with sufficient certainty need not be considered The relief claimed cannot be given

6122 The third of the petitionerrsquos claims for relief other than the voiding of the election was the ldquoticket votingrdquo claim which Justice Hayne dealt with as follows

For like reasons there is no basis upon which the Court might lawfully ldquoinstructrdquo the respondent about the conduct of future elections Future elections must be conducted according to law The relief claimed cannot be given

6123 The fourth of the petitionerrsquos claims for relief other than the voiding of the election was the ldquoclass actionrdquo claim which Justice Hayne dealt with as follows

The question of joining this petition to other petitions pending in the Court as some form of class action is a question that relates only to how this petition is to be dealt with it is not a question that touches the merits of the complaints that the petitioner makes It is therefore not a question that affects whether the orders sought by the respondent should now be made That being said however it is to be recalled that in Muldowney v Australian Electoral Commission Brennan ACJ held that the jurisdiction to declare an election void on the petition of a person qualified to vote at that election is a power limited to those elections in which the petitioner was entitled to vote and did not extend to power to declare the entirety of a general election void

It may be as the respondent contended that the attempt to have petitions form a class action was to try to overcome these decisions But the validity and force of the respondentrsquos contention in this regard would depend upon what was said to follow from ldquojoiningrdquo petitions as a ldquoclass actionrdquo The petitioner pointed to no provision of the Act or the High Court Rules that contemplates joining petitions as a class action and the point was not examined in any detail in the course of argument Because these are not matters that affect whether the orders sought by the respondent should be made it is not necessary to explore them further

6124 The central claim for relief by the petitioner was the claim to void the half-Senate election for the State of Victoria and declare the six Victorian Senators not duly elected Justice Hayne described the argument submitted by the AEC against the petition as follows

The principal focus of argument was on the petitionerrsquos claim that the election in question should be declared void As to that the respondent submitted that the petition should be stayed or dismissed because first it does not comply with s 355 of the Act secondly it alleges no ldquoillegal practicerdquo as that term is defined in the Act (a breach of the Act or regulations) and therefore the Court has no jurisdiction to avoid the election and thirdly it fails to raise any ground which would justify the avoidance of the election it seeks to challenge

6125 His Honour then discussed the various relevant provisions of section 355 of the Electoral Act which sets down the requirements for a petition and section 362(3) of the Act which provides for the voiding of an election for illegal practices Justice Hayne made the following comment on section 362(3)

In Webster v Deahm Gaudron J held that hellip

ldquothe very minimum assertion necessary to constitute a fact which will lsquoinvalidate [an] election or returnrsquo for the purposes of s 355(a) of the Act is one raising a matter or matters by which lsquothe election was likely to be affectedrsquordquo

No doubt it was in light of this that the respondent submitted that a petition must be dismissed if it does not set out facts which if proved would establish that there are available grounds for invalidating the election and the election was likely to be affected on those grounds

That submission proceeded from the premise that s 362(3) is an exhaustive statement of the circumstances in which the Court may declare an election void Put in that way the submission may very well be stated too broadly In Hudson v Lee Gaudron J held that s 352(1) of the Act identified exhaustively the practices which might properly found a petition under Div 1 Nevertheless the respondent submitted that I need not form any concluded view on that question because (so it was submitted) the facts alleged in the petition if established would not entitle the petitioner to an order avoiding the election

6126 Justice Hayne then turned to the facts that were alleged by the petitioner In response to the first complaint about the lack of media coverage for the petitioner His Honour said the following

The first complaint depends upon the contention that there has been some breach of an implied freedom of communication in relation to the political and electoral processhellipThe short answer to this first complaint is that the freedom of communication implied in the Constitution is not an obligation to publicise The freedom is a freedom from government action it is not a right to require others to provide a means of communication The petitionerrsquos case depends upon him having some right to require others to disseminate his views But as was said in Lange v Australian Broadcasting Corporation

ss 7 and 24 and the related sections of the Constitution necessarily protect that freedom of communication between the people concerning political or government matters which enables the people to exercise a free and informed choice as electors Those sections do not confer personal rights on individuals Rather they preclude the curtailment of the protected freedom by the exercise of legislative or executive power As Deane J said in Theophanous they are lsquoa limitation or confinement of laws and powers [which] gives rise to a pro tanto immunity on the part of the citizen from being adversely affected by those laws or by the exercise of those powers rather than to a ldquorightrdquo in the strict sensersquo In Cunliffe v The Commonwealth Brennan J pointed out that the freedom confers no rights on individuals and to the extent that the freedom rests upon implication that implication defines the nature an extent of the freedom His Honour said

lsquoThe implication is negative in nature it invalidates laws and consequently creates an area of immunity from legal control particularly from legislative controlrsquordquo

6127 In response to the second complaint about the application of the provisions of the Act dealing with the grouping of Senate candidates Justice Hayne reviewed previous court decisions on this issue as follows

The constitutional validity of provisions like s 211 has twice been considered ndash in McKenzie v The Commonwealth and in Abbotto v Australian Electoral Commission At the time of McKenzie the Act was cast in slightly different terms and did not contain s 211A Gibbs CJ rejected a submission that the group voting system then provided for the election of Senators was contrary to s 7 or 16 of the Constitution and held that the provisions then in force did not ldquoso [offend] democratic principles as to render the sections beyond the power of the Parliament to enactrdquo In Abbotto Dawson J held that there was no substance to the contention that the voting system provided for by ss 211 and 211A contravened s 10 of the Constitution The petition in this matter did not explicitly challenge the constitutional validity of ss 211 and 211A The petitioner sought to add such a challenge by the amendments I have mentioned earlier but for the reasons I have set out that challenge is not sustainable

6128 His Honour then dismissed the petitionerrsquos arguments in relation to ticket voting for Senate elections as follows

The petitioner alleges that the provisions are ldquounfairrdquo and asserts that s 211 (and perhaps s 211A) is not a reasonably proportionate regulation of the subject matter He prays in aid of this submission that the Court is obliged by s 364 to be ldquoguided by the substantial merits and good conscience of each case without regard to legal forms or technicalitiesrdquo

Read in the context of the Act s 364 and its reference to ldquosubstantial merits and good consciencerdquo is to be understood as directing the Court about how it should set about its task of deciding the issues presented under the Act by the petition it does not give the Court some power to rewrite the Act to accord with some abstract standard of fairness If the provisions made in the Act for election of Senators are valid laws of the Parliament it is not to the point for the Court to attempt to characterise those provisions as ldquofairrdquo or ldquounfairrdquo In particular s 364 gives no warrant for the Court declaring void an election conducted in accordance with valid legislative requirements

Thus if ss 211 and 211A are valid laws of the Parliament an election conducted in accordance with these provisions (and the other applicable provisions of the Act) cannot be held to be void The asserted challenge to validity is as I have said without foundation It follows that the second of the petitionerrsquos complaints fails

6129 Finally Justice Hayne made comment on the conduct of the proceedings by the petitioner in entering appearances for 384 other persons who he claimed supported his petition

Before parting with this matter it is as well to say something of the way in which the provisions permitting the entry of appearance by persons entitled to vote at the election in question have operated in this case As I have noted earlier more than 380 appearances were filed It goes without saying that the number of persons appearing made the conduct of the proceeding more difficult and costly than it would have been if the only parties to it were the petitioner and the respondent More troubling were the suggestions in an affidavit filed on behalf of the respondent first that some of those who entered an appearance may have been misled about what they were doing (or at least may not have understood the significance of the step they were taking) and second that some persons given notice of the proceeding because notice of appearance had been given in their name denied that they knew anything at all about the matter and denied entering an appearance I have however embarked on no inquiry about these assertions and make no finding about them

6130 His Honour concluded his judgment by dismissing the petition and ordered that the petitioner pay the costs of the respondent the AEC

6131 Following the conclusion of this case the AGS referred the matter of the 384 appearances filed with the Court by Mr McClure ostensibly in support of his petition to the Australian Federal Police for investigation of a possible offence under the Crimes Act 1914

62 The Related Petitions

621 The McClure v AEC petition was identical to four other petitions filed with the High Court in Registries around the nation disputing the half-Senate elections in those States and the Senate election for the Northern Territory The five identical petitions also sought a ldquoclass actionrdquo hearing and were as follows

NT Senate Polke v AEC filed Darwin 2 December 1998 NSW Senate Vaughan v AEC filed Sydney 7 December 1998 WA Senate Garcia v AEC filed Perth 7 December 1998 Vic Senate McClure v AEC filed Melbourne 8 December 1998 Tas Senate Heathorn v AEC filed Hobart 8 December 1998

622 On the dismissal of the McClure v AEC petition by Justice Hayne on 24 June 1999 Mr Geoffrey McCarthy of AGS acting on behalf of the AEC filed summonses and affidavits on 8 July 1999 seeking orders in each of remaining four petitions that the petitions be dismissed or stayed

623 On 9 July 1999 the four petitioners all unsuccessful independent Senate candidates were served by Mr McCarthy of AGS on behalf of the AEC with similar summonses and affidavits to those filed in the McClure petition by the AEC The petitioners were further advised that should they notify Mr McCarthy before 16 July 1999 of their intention not to oppose the application by the AEC for dismissal of the petitions then the AEC would not seek costs against them

624 The petitioners Mr Garcia Mr Polke and Mr Vaughan advised Mr McCarthy on 14 July 1999 that they would not oppose the applications by the AEC for the dismissal of their petitions The fourth petitioner Mr Heathorn advised Mr McCarthy on 21 July 1999 that he would not oppose the AEC application for dismissal The petitioners also advised the Court of their intentions not to oppose the AEC application

625 On 22 July 1999 before Justice Hayne of the Court of Disputed Returns in Canberra a video-link was established with Perth Darwin Sydney and Hobart to enable the petitioners to be heard if they so wished Mr Gageler of counsel represented the AEC with Mr Geoffrey McCarthy and there was no appearance by the petitioners or by any of the other persons who had filed appearances in support of the petitioners Justice Hayne delivered the same decision in each of the petition as follows

The petition is not materially different from the petition I considered in the matter of McClure v Australian Electoral Commission (1999) 163 ALR 734 For the reasons I gave in that matter this petition cannot succeed It is dismissed The respondent does not seek costs and there is no order as to costs

7 Implications of the McClure Decision

71 Senate Group Ticket Voting

711 It is not unusual for independent Senate candidates to belatedly discover generally at the time of nomination that they are not entitled to appear on the ballot paper as a group ldquoabove the linerdquo and thereby take advantage of the ticket voting system for the Senate This may give rise to some protest at the ldquofairnessrdquo of sections 211 and 211A of the Electoral Act and can result in petitions to the Court of Disputed Returns after the election on the grounds that the law is both unconstitutional and ldquounfairrdquo to independent candidates

712 In McKenzie v The Commonwealth (1984) 59 ALJR 190 and in Abbotto v AEC (1997) 71 ALJR 675 the High Court has confirmed that the Senate group ticket voting system is not unconstitutional In McKenzie Gibbs CJ held that that the relevant provisions did not ldquoso offend democratic principles as to render the sections beyond the power of the Parliament to enactrdquo In Abbotto Dawson J held that the relevant provisions did not contravene section 10 of the Constitution McClure v AEC (1999) 73 ALJR 1086 is in accordance with these previous decisions in relation to the constitutionality of the Senate group ticket voting system

713 Further confirmation of the validity of the Senate group voting system is evidenced by the dismissal by the Federal Court of an injunction application on similar grounds by Mr Hodgetts just prior to polling day for the 1998 federal election (Hodgetts v AEC Dowsett J 2 October 1998 unreported) (see paras 1226 to 1228 of AEC submission No 88 of 12 March 1999)

714 In the McClure petition and proceedings it was also claimed that the provisions are ldquounfairrdquo to independents and that section 364 of the Electoral Act required the Court to make a finding that the election was therefore void Section 364 of the Electoral Act is entitled ldquoReal justice to be observedrdquo and provides as follows

The Court shall be guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities or whether the evidence before it is in accordance with the law of evidence or not

715 Petitioners occasionally invoke this provision in their submissions to the Court arguing that it means that elements of the rule of law should not apply to proceedings in election petitions and that the Court should take into its consideration whether or not a particular law is ldquofairrdquo or ldquounfairrdquo As noted by Gleeson CJ Gummow and Hayne JJ in Sue v Hill (1999) 73 ALJR 1016 at 1025

Provisions of this typehellipdo not exonerate the Court from the application of substantive rules of law and are consistent with and indeed require the application of the rules of procedural fairness

536 Until the current financial year the AECrsquos appropriations included separate financial provision for ldquoLegal and Compensationrdquo matters The new financial arrangements for 1999-2000 do not include any such separately identified provision The AEC is therefore concerned that should a number of major cases reach the court after an electoral event and the Court increasingly exercises its power to order costs against the Commonwealth then the AEC could be forced to draw from other internal funding priorities in order to cover the costs awarded against the Commonwealth

537 That is the AEC is not persuaded that it can meet Commonwealth costs in electoral litigation in the future without specifically targeted funding In this context it is worth mentioning that the Government is not averse to specifically targeting funding for the AEC In the 1996 Federal Budget $2 million was removed from AEC funding which resulted in the abolition of the Aboriginal and Torres Strait Islander Electoral Information Service (ATSIEIS) In the 1998 Federal Budget the AEC was provided with additional funding specifically tied to the level of staffing in Divisional Offices

538 In the related matter of Sharples v Hill which was concluded by Justice Callinan on 29 July 1999 after the final proceedings in Sue v Hill were concluded by Chief Justice Gleeson on 2 July 1999 the Constitutional Unit in the office of the Australian Government Solicitor (AGS) advised that the AEC must provide instructions to counsel for the Commonwealth on costs despite the Attorney-Generalrsquos office having done so in Sue v Hill

539 This advice in relation to the provision of instructions for the Commonwealth in Sharples v Hill was on the basis that the office of the Attorney-General only provided instructions in Sue v Hill because of the limited time frame and no-one else being available at the time on the basis that it had been agreed with DOFA that the AEC now appears to be administratively responsible for all Commonwealth costs in electoral litigation and on the basis that the AEC had agreed (for practical reasons) to assume responsibility for the provision of instructions on Commonwealth costs negotiations in Sue v Hill

5310 The outcome was that whilst separate counsel from AGS appeared for the Commonwealth and the AEC on 29 July in the later proceedings in Sharples v Hill the AEC was in fact instructing both counsel behind the scenes (the Commonwealth did not oppose an order for costs) Such legal fictions have the potential to muddle perceptions about the separate roles of the AEC and the Commonwealth in election litigation and to the extent that the structure and provisions of the Electoral Act allow such fictions to continue legislative amendment may be required

5311 The most significant issues arising from the related matters discussed above would appear to be as follows

(a) Whether section 360(4) and related costs provisions of the Electoral Act should be amended to require the Commonwealth to pay costs in all election petitions unless otherwise ordered by the Court

(b) Whether the respective roles of the AEC and the Commonwealth in court proceedings in election petitions should be expressly distinguished in the Electoral Act

(c) Whether the Electoral Act should provide for special financial appropriations to enable the AEC to bear Commonwealth costs in election litigation in the future

5312 In the view of the AEC these questions could be properly addressed within the terms of Recommendation 1 made at paragraph 5115 above in this submission

6 Proceedings in McClure v AEC and related Petitions

61 The McClure Petition

611 On 8 December 1998 Mr Malcolm McClure an unsuccessful independent candidate at the Victorian half-Senate election on 3 October 1998 filed a petition in the Melbourne Registry of the High Court disputing the election of all Senators for the State of Victoria In his petition Mr McClure asserted his entitlement to vote and to be a candidate at the Victorian Senate election and asserted the following two grounds for his petition

That the platform of candidacy of the petitioner was not given media coverage despite requests andor demands for such coverage to the various media bodies and that denial of such media coverage is against the principles of fair democratic elections which is a foundation of the Constitution and that were such coverage granted the result of the election would in the greater probability have been significantly different

That the petitioner was disadvantaged under ss 211 and 211A of the Commonwealth Electoral Act 1918 by not having a right to a ldquoticket voterdquo and that such disadvantage has in the greater probability significantly affected the outcome of this election and that such disadvantagement is against the interests of a true and fair democratic process which forms the foundation of our constitution

612 The petitioner Mr McClure asked the Court to declare the Victorian Senate election void and the six Senators not duly elected The petitioner also sought four other kinds of relief

bull the return from the AEC of his $700 nomination fee (the deposit claim) bull that the Court ldquoinstructrdquo the AEC to make provision for ticket voting for

independent candidates in all future elections for the Senate (the ticket voting claim)

bull that ldquothe Chiefs of Staffs of the media bodies be informally instructed by the Court to make provision for and ensure proper coverage of press releases and policy launches by independent candidates andor that some form of caution be given to said media bodies regarding the intrinsically incumbent responsibilities they have within our democratic process to discern and report important election issues raised by independentsrdquo (the publicity claim) and

bull that leave be granted to join this petition and certain other petitions now pending in the Court ldquoas a class-action before the Full Bench of the High Courtrdquo (the class action claim)

613 Mr McClurersquos petition was identical to four other petitions filed with the High Court in Registries around the nation disputing the half-Senate elections in those States and the Northern Territory The five identical petitions also sought a ldquoclass actionrdquo hearing and were as follows

NT Senate Polke v AEC filed Darwin 2 December 1998 NSW Senate Vaughan v AEC filed Sydney 7 December 1998 WA Senate Garcia v AEC filed Perth 7 December 1998 Vic Senate McClure v AEC filed Melbourne 8 December 1998 Tas Senate Heathorn v AEC filed Hobart 8 December 1998

614 However as it appeared that Mr McClure was willing for his petition to be actioned first as a ldquotest caserdquo for the other four petitions a summons was filed by the AEC on 10 March 1999 for a directions hearing before the High Court in McClure v AEC in Melbourne on 29 March

615 The AEC summons sought orders that the petition be dismissed or alternatively that the petition be stayed on the ground that there was no reasonable or probable cause of action or suit or that the proceeding was an abuse of the powers of the Court In support of the summons an affidavit was filed with the Court by Mr Geoffrey McCarthy of the Australian Government Solicitor (AGS) on behalf of the AEC

616 Because the petition might have raised constitutional matters a Notice of a Constitutional Matter under section 78B of the Judiciary Act 1903 was filed with the Court by the AEC on 17 March and provided to the petitioner and to the Attorneys-General for the Commonwealth and the States and Territories

617 On 29 March Mr Geoffrey McCarthy of AGS filed an affidavit with the Court advising that he was acting on behalf of the AEC applying for the orders sought in the summons of 10 March and advising that the written submissions of the AEC had been forwarded to the Court and to the petitioner on 25 March

618 At the directions hearing on the McClure petition on 29 March 1999 in Melbourne before Justice Hayne of the High Court sitting as the Court of Disputed Returns Mr Gageler of counsel appeared for the AEC and Mr McClure represented himself

619 Justice Hayne immediately registered his concern that 384 people had entered an appearance in the petition but had apparently not been advised of the hearings on that day His Honour was concerned that these people should have the opportunity to be heard in the proceedings should they wish to do so The respondent to the petition the AEC had not been made aware of these 384 appearances ldquoin support of the petitionerrdquo until immediately prior to the commencement of the court proceedings

6110 Justice Hayne made the following orders on 29 March 1999

1 Adjourn further hearing of summons dated 10 March 1999 to 27 April at 930 am Melbourne 2 Direct that notice of the application made by that summons shall be sufficiently given by the Australian Electoral Commission giving notice to the other parties to the proceedings upon the petition of the further hearing of that summons by posting on or before 7 April 1999 by prepaid ordinary post to the address for service of each of the parties to the proceedings upon the petition (other than the petitioner and respondent) a notice substantially in the form of the schedule to this order 3 Reserve costs 4 Certify for counsel

6111 In compliance with the orders of the Court by letters on 31 March and 1 April Mr Geoffrey McCarthy of the AGS acting for the AEC wrote to each of the 384 persons who had entered an appearance advising them of the proceedings and attaching copy of the Court orders and the relevant notice

6112 From around 6 April the office of the AGS in Canberra and the Court Registry in Melbourne received an avalanche of phone calls or correspondence from these persons complaining that they knew nothing about the petition had never met Mr McClure and to their knowledge had not signed any document entering an appearance in the petition Some of them recalled signing a ldquopetitionrdquo in the street but thought it had been about other matters such as animal welfare or suburban parking restrictions Complaints were also made to the AEC directly in one instance claiming that the AEC had released a personrsquos name in contravention of the Privacy Act (which was not the case) These persons were referred by the AGS for further information either to Mr McClure the petitioner or to the Court Registry

6113 On 9 April Mr McCarthy of the AGS on behalf of the AEC wrote a further letter to these 384 persons outlining the grounds of the McClure petition explaining that it was Mr McClure who had filed their Notices of Appearance with the Court on their behalf and advising that the AEC was the respondent to the petition and had no part in them becoming involved in the matter On 26 April Mr McCarthy filed an affidavit with the Court advising the action taken in compliance with the orders of the Court

6114 On 27 April the hearing of the AEC summons to have the petition dismissed or stayed resumed before Justice Hayne in Melbourne Mr Gageler of counsel appeared for the AEC with Mr Geoffrey McCarthy and Mr McClure represented himself Only one of the 384 persons Mr McClure claimed supported his petition appeared in person Mr Cecil Murgatroyd made a short submission in support of the McClure petition towards the end of the hearing Another person Ms Kelly Buzza was represented by Mr Terry Shiels who submitted that she had not understood that the documents she had signed constituted an entry of appearance to the petition

6115 Largely as a matter of procedural fairness to Mr McClure Mr Gageler for the AEC took the Court through the various relevant provisions of the Electoral Act and summarised the arguments as to why the petition failed to comply with section 355(a) of the Act which requires the petitioner to set out the facts relied on to invalidate the election and section 355(aa) of the Act which requires the petitioner to set out those facts with sufficient particularity In reply Mr McClure did not really address the submissions of the AEC but instead gave more of a political speech about the alleged unfairness of independent Senate candidates being denied access to group ticket voting

6116 In the course of the hearings Mr McClure sought to amend his petition by alleging that sections 211 and 211A of the Electoral Act which deal with ticket voting for Senate elections are not valid laws of the Parliament because there was no proper Royal Assent to the bills by which those sections were inserted in the Act Mr McClure asserted that Australia became a sovereign and independent nation at or after the time of the Treaty of Versailles and accordingly Royal Assent to or on behalf of a person who is the sovereign of the United Kingdom was of no effect

6117 Justice Hayne gave Mr McClure several opportunities to ensure that he had addressed the Court on everything he wished to say and repeated back to Mr McClure his understanding of Mr McClurersquos submissions to ensure that there was no misunderstanding On each occasion Mr McClure agreed that the Court understood his point of view On several occasions Justice Hayne also made it clear to Mr McClure that ldquothere would be no tomorrowrdquo and that he should make sure he covered everything in support of his allegations and claims Justice Hayne then reserved his decision

6118 On 24 June 1999 Justice Hayne delivered his decision ordering that the McClure petition be dismissed and that the petitioner Mr McClure pay the costs of the respondent the AEC

6119 In his decision in McClure v AEC (1999) 73 ALJR 1086 at Attachment 5 Justice Hayne formally refused Mr McClurersquos application at the time of the hearing to amend his petition so as to allege that sections 211 and 211A of the Electoral Act were not valid laws of the Parliament His Honour concluded that the law to be applied by the courts is to be found in covering clause 5 to the Constitution and said further

In so far as the petitioner relies on some alleged deficiency in the signification of Royal Assent it is ss 58 59 and 60 of the Constitution that deal with the ways in which the Royal Assent may be given to bills passed by the other elements of the Parliament So far as is now relevant s 58 governs It provides that the Governor-General ldquoshall declare according to his discretion but subject to this Constitution that he assents in the Queenrsquos namerdquo There is nothing to suggest that that this was not done in the case of the Acts that introduced s 211 and s 211A into the Act The history of the international dealings to which the petitioner referred is not the point

It is in these circumstances not necessary to consider whether ss 355(e) and 358 of the Act preclude amendment because it is sought more than 40 days after the return of the writ The respondentrsquos reliance on those provisions assumes that they are valid The petitionerrsquos proposed amendment might appear to attempt to cast doubt on that validity But as I have indicated earlier the arguments against validity must fail and the amendments proposed would be futile

6120 In dismissing the petition Justice Hayne dealt firstly in his judgment with the petitionerrsquos claims for relief other than the actual voiding of the election The first of these claims was the ldquodeposit claimrdquo for the return of the petitionerrsquos Senate nomination deposit of $700

The petitioner seeks the return of the sum deposited by him in accordance with s 170(2) of the Act hellip He characterises this deposit as ldquoconfirmation of a contractrdquo between the petitioner and the respondent and says in effect that consideration for the contract wholly failed (or there was no meeting of minds) because the electoral process was not as he supposed it to be ndash one in which ldquono one candidate would be disadvantaged abovehellipanotherrdquo

There are at least two answers to this contention First the statutory requirement that a deposit is paid by or on behalf of the person nominated is not a requirement that leads to the formation of a contract between the respondent and the nominee or a person who pays the deposit on behalf of the nominee The Act prescribes the circumstances in which the deposit is to be forfeited and those circumstances came to pass in the petitionerrsquos case ndash the number of votes polled in his favour as first preferences was less than 4 per cent of the total number of votes polled as first preferences Questions of consideration failure of consideration or meeting of the minds simply do not arise and the claim must therefore fail

Secondly it may be very much doubted that the Court has power to order the return of a candidatersquos deposit No such power is included in the list of powers of the Court given by s 360(1) and although that list is not exhaustive the petitioner was not able to point to any basis for concluding that the Court does not have the power for which he contends This claim must fail

6121 The second of the petitionerrsquos claims for relief other than the voiding of the election was the ldquopublicity claimrdquo which Justice Hayne dealt with as follows

It is not clear what the petitioner means when he says that the Court should ldquoinformally instructrdquo the chiefs of staff of media bodies about how they should act in the future If he seeks to have the Court give some advice to these persons it is enough to say that this is not the Courtrsquos function If he seeks to have the Court make some order about future conduct there is no basis in the Act for concluding that the Court has any power to do so There being no power to do so the further questions that might then have arisen about framing an order with sufficient certainty need not be considered The relief claimed cannot be given

6122 The third of the petitionerrsquos claims for relief other than the voiding of the election was the ldquoticket votingrdquo claim which Justice Hayne dealt with as follows

For like reasons there is no basis upon which the Court might lawfully ldquoinstructrdquo the respondent about the conduct of future elections Future elections must be conducted according to law The relief claimed cannot be given

6123 The fourth of the petitionerrsquos claims for relief other than the voiding of the election was the ldquoclass actionrdquo claim which Justice Hayne dealt with as follows

The question of joining this petition to other petitions pending in the Court as some form of class action is a question that relates only to how this petition is to be dealt with it is not a question that touches the merits of the complaints that the petitioner makes It is therefore not a question that affects whether the orders sought by the respondent should now be made That being said however it is to be recalled that in Muldowney v Australian Electoral Commission Brennan ACJ held that the jurisdiction to declare an election void on the petition of a person qualified to vote at that election is a power limited to those elections in which the petitioner was entitled to vote and did not extend to power to declare the entirety of a general election void

It may be as the respondent contended that the attempt to have petitions form a class action was to try to overcome these decisions But the validity and force of the respondentrsquos contention in this regard would depend upon what was said to follow from ldquojoiningrdquo petitions as a ldquoclass actionrdquo The petitioner pointed to no provision of the Act or the High Court Rules that contemplates joining petitions as a class action and the point was not examined in any detail in the course of argument Because these are not matters that affect whether the orders sought by the respondent should be made it is not necessary to explore them further

6124 The central claim for relief by the petitioner was the claim to void the half-Senate election for the State of Victoria and declare the six Victorian Senators not duly elected Justice Hayne described the argument submitted by the AEC against the petition as follows

The principal focus of argument was on the petitionerrsquos claim that the election in question should be declared void As to that the respondent submitted that the petition should be stayed or dismissed because first it does not comply with s 355 of the Act secondly it alleges no ldquoillegal practicerdquo as that term is defined in the Act (a breach of the Act or regulations) and therefore the Court has no jurisdiction to avoid the election and thirdly it fails to raise any ground which would justify the avoidance of the election it seeks to challenge

6125 His Honour then discussed the various relevant provisions of section 355 of the Electoral Act which sets down the requirements for a petition and section 362(3) of the Act which provides for the voiding of an election for illegal practices Justice Hayne made the following comment on section 362(3)

In Webster v Deahm Gaudron J held that hellip

ldquothe very minimum assertion necessary to constitute a fact which will lsquoinvalidate [an] election or returnrsquo for the purposes of s 355(a) of the Act is one raising a matter or matters by which lsquothe election was likely to be affectedrsquordquo

No doubt it was in light of this that the respondent submitted that a petition must be dismissed if it does not set out facts which if proved would establish that there are available grounds for invalidating the election and the election was likely to be affected on those grounds

That submission proceeded from the premise that s 362(3) is an exhaustive statement of the circumstances in which the Court may declare an election void Put in that way the submission may very well be stated too broadly In Hudson v Lee Gaudron J held that s 352(1) of the Act identified exhaustively the practices which might properly found a petition under Div 1 Nevertheless the respondent submitted that I need not form any concluded view on that question because (so it was submitted) the facts alleged in the petition if established would not entitle the petitioner to an order avoiding the election

6126 Justice Hayne then turned to the facts that were alleged by the petitioner In response to the first complaint about the lack of media coverage for the petitioner His Honour said the following

The first complaint depends upon the contention that there has been some breach of an implied freedom of communication in relation to the political and electoral processhellipThe short answer to this first complaint is that the freedom of communication implied in the Constitution is not an obligation to publicise The freedom is a freedom from government action it is not a right to require others to provide a means of communication The petitionerrsquos case depends upon him having some right to require others to disseminate his views But as was said in Lange v Australian Broadcasting Corporation

ss 7 and 24 and the related sections of the Constitution necessarily protect that freedom of communication between the people concerning political or government matters which enables the people to exercise a free and informed choice as electors Those sections do not confer personal rights on individuals Rather they preclude the curtailment of the protected freedom by the exercise of legislative or executive power As Deane J said in Theophanous they are lsquoa limitation or confinement of laws and powers [which] gives rise to a pro tanto immunity on the part of the citizen from being adversely affected by those laws or by the exercise of those powers rather than to a ldquorightrdquo in the strict sensersquo In Cunliffe v The Commonwealth Brennan J pointed out that the freedom confers no rights on individuals and to the extent that the freedom rests upon implication that implication defines the nature an extent of the freedom His Honour said

lsquoThe implication is negative in nature it invalidates laws and consequently creates an area of immunity from legal control particularly from legislative controlrsquordquo

6127 In response to the second complaint about the application of the provisions of the Act dealing with the grouping of Senate candidates Justice Hayne reviewed previous court decisions on this issue as follows

The constitutional validity of provisions like s 211 has twice been considered ndash in McKenzie v The Commonwealth and in Abbotto v Australian Electoral Commission At the time of McKenzie the Act was cast in slightly different terms and did not contain s 211A Gibbs CJ rejected a submission that the group voting system then provided for the election of Senators was contrary to s 7 or 16 of the Constitution and held that the provisions then in force did not ldquoso [offend] democratic principles as to render the sections beyond the power of the Parliament to enactrdquo In Abbotto Dawson J held that there was no substance to the contention that the voting system provided for by ss 211 and 211A contravened s 10 of the Constitution The petition in this matter did not explicitly challenge the constitutional validity of ss 211 and 211A The petitioner sought to add such a challenge by the amendments I have mentioned earlier but for the reasons I have set out that challenge is not sustainable

6128 His Honour then dismissed the petitionerrsquos arguments in relation to ticket voting for Senate elections as follows

The petitioner alleges that the provisions are ldquounfairrdquo and asserts that s 211 (and perhaps s 211A) is not a reasonably proportionate regulation of the subject matter He prays in aid of this submission that the Court is obliged by s 364 to be ldquoguided by the substantial merits and good conscience of each case without regard to legal forms or technicalitiesrdquo

Read in the context of the Act s 364 and its reference to ldquosubstantial merits and good consciencerdquo is to be understood as directing the Court about how it should set about its task of deciding the issues presented under the Act by the petition it does not give the Court some power to rewrite the Act to accord with some abstract standard of fairness If the provisions made in the Act for election of Senators are valid laws of the Parliament it is not to the point for the Court to attempt to characterise those provisions as ldquofairrdquo or ldquounfairrdquo In particular s 364 gives no warrant for the Court declaring void an election conducted in accordance with valid legislative requirements

Thus if ss 211 and 211A are valid laws of the Parliament an election conducted in accordance with these provisions (and the other applicable provisions of the Act) cannot be held to be void The asserted challenge to validity is as I have said without foundation It follows that the second of the petitionerrsquos complaints fails

6129 Finally Justice Hayne made comment on the conduct of the proceedings by the petitioner in entering appearances for 384 other persons who he claimed supported his petition

Before parting with this matter it is as well to say something of the way in which the provisions permitting the entry of appearance by persons entitled to vote at the election in question have operated in this case As I have noted earlier more than 380 appearances were filed It goes without saying that the number of persons appearing made the conduct of the proceeding more difficult and costly than it would have been if the only parties to it were the petitioner and the respondent More troubling were the suggestions in an affidavit filed on behalf of the respondent first that some of those who entered an appearance may have been misled about what they were doing (or at least may not have understood the significance of the step they were taking) and second that some persons given notice of the proceeding because notice of appearance had been given in their name denied that they knew anything at all about the matter and denied entering an appearance I have however embarked on no inquiry about these assertions and make no finding about them

6130 His Honour concluded his judgment by dismissing the petition and ordered that the petitioner pay the costs of the respondent the AEC

6131 Following the conclusion of this case the AGS referred the matter of the 384 appearances filed with the Court by Mr McClure ostensibly in support of his petition to the Australian Federal Police for investigation of a possible offence under the Crimes Act 1914

62 The Related Petitions

621 The McClure v AEC petition was identical to four other petitions filed with the High Court in Registries around the nation disputing the half-Senate elections in those States and the Senate election for the Northern Territory The five identical petitions also sought a ldquoclass actionrdquo hearing and were as follows

NT Senate Polke v AEC filed Darwin 2 December 1998 NSW Senate Vaughan v AEC filed Sydney 7 December 1998 WA Senate Garcia v AEC filed Perth 7 December 1998 Vic Senate McClure v AEC filed Melbourne 8 December 1998 Tas Senate Heathorn v AEC filed Hobart 8 December 1998

622 On the dismissal of the McClure v AEC petition by Justice Hayne on 24 June 1999 Mr Geoffrey McCarthy of AGS acting on behalf of the AEC filed summonses and affidavits on 8 July 1999 seeking orders in each of remaining four petitions that the petitions be dismissed or stayed

623 On 9 July 1999 the four petitioners all unsuccessful independent Senate candidates were served by Mr McCarthy of AGS on behalf of the AEC with similar summonses and affidavits to those filed in the McClure petition by the AEC The petitioners were further advised that should they notify Mr McCarthy before 16 July 1999 of their intention not to oppose the application by the AEC for dismissal of the petitions then the AEC would not seek costs against them

624 The petitioners Mr Garcia Mr Polke and Mr Vaughan advised Mr McCarthy on 14 July 1999 that they would not oppose the applications by the AEC for the dismissal of their petitions The fourth petitioner Mr Heathorn advised Mr McCarthy on 21 July 1999 that he would not oppose the AEC application for dismissal The petitioners also advised the Court of their intentions not to oppose the AEC application

625 On 22 July 1999 before Justice Hayne of the Court of Disputed Returns in Canberra a video-link was established with Perth Darwin Sydney and Hobart to enable the petitioners to be heard if they so wished Mr Gageler of counsel represented the AEC with Mr Geoffrey McCarthy and there was no appearance by the petitioners or by any of the other persons who had filed appearances in support of the petitioners Justice Hayne delivered the same decision in each of the petition as follows

The petition is not materially different from the petition I considered in the matter of McClure v Australian Electoral Commission (1999) 163 ALR 734 For the reasons I gave in that matter this petition cannot succeed It is dismissed The respondent does not seek costs and there is no order as to costs

7 Implications of the McClure Decision

71 Senate Group Ticket Voting

711 It is not unusual for independent Senate candidates to belatedly discover generally at the time of nomination that they are not entitled to appear on the ballot paper as a group ldquoabove the linerdquo and thereby take advantage of the ticket voting system for the Senate This may give rise to some protest at the ldquofairnessrdquo of sections 211 and 211A of the Electoral Act and can result in petitions to the Court of Disputed Returns after the election on the grounds that the law is both unconstitutional and ldquounfairrdquo to independent candidates

712 In McKenzie v The Commonwealth (1984) 59 ALJR 190 and in Abbotto v AEC (1997) 71 ALJR 675 the High Court has confirmed that the Senate group ticket voting system is not unconstitutional In McKenzie Gibbs CJ held that that the relevant provisions did not ldquoso offend democratic principles as to render the sections beyond the power of the Parliament to enactrdquo In Abbotto Dawson J held that the relevant provisions did not contravene section 10 of the Constitution McClure v AEC (1999) 73 ALJR 1086 is in accordance with these previous decisions in relation to the constitutionality of the Senate group ticket voting system

713 Further confirmation of the validity of the Senate group voting system is evidenced by the dismissal by the Federal Court of an injunction application on similar grounds by Mr Hodgetts just prior to polling day for the 1998 federal election (Hodgetts v AEC Dowsett J 2 October 1998 unreported) (see paras 1226 to 1228 of AEC submission No 88 of 12 March 1999)

714 In the McClure petition and proceedings it was also claimed that the provisions are ldquounfairrdquo to independents and that section 364 of the Electoral Act required the Court to make a finding that the election was therefore void Section 364 of the Electoral Act is entitled ldquoReal justice to be observedrdquo and provides as follows

The Court shall be guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities or whether the evidence before it is in accordance with the law of evidence or not

715 Petitioners occasionally invoke this provision in their submissions to the Court arguing that it means that elements of the rule of law should not apply to proceedings in election petitions and that the Court should take into its consideration whether or not a particular law is ldquofairrdquo or ldquounfairrdquo As noted by Gleeson CJ Gummow and Hayne JJ in Sue v Hill (1999) 73 ALJR 1016 at 1025

Provisions of this typehellipdo not exonerate the Court from the application of substantive rules of law and are consistent with and indeed require the application of the rules of procedural fairness

5310 The outcome was that whilst separate counsel from AGS appeared for the Commonwealth and the AEC on 29 July in the later proceedings in Sharples v Hill the AEC was in fact instructing both counsel behind the scenes (the Commonwealth did not oppose an order for costs) Such legal fictions have the potential to muddle perceptions about the separate roles of the AEC and the Commonwealth in election litigation and to the extent that the structure and provisions of the Electoral Act allow such fictions to continue legislative amendment may be required

5311 The most significant issues arising from the related matters discussed above would appear to be as follows

(a) Whether section 360(4) and related costs provisions of the Electoral Act should be amended to require the Commonwealth to pay costs in all election petitions unless otherwise ordered by the Court

(b) Whether the respective roles of the AEC and the Commonwealth in court proceedings in election petitions should be expressly distinguished in the Electoral Act

(c) Whether the Electoral Act should provide for special financial appropriations to enable the AEC to bear Commonwealth costs in election litigation in the future

5312 In the view of the AEC these questions could be properly addressed within the terms of Recommendation 1 made at paragraph 5115 above in this submission

6 Proceedings in McClure v AEC and related Petitions

61 The McClure Petition

611 On 8 December 1998 Mr Malcolm McClure an unsuccessful independent candidate at the Victorian half-Senate election on 3 October 1998 filed a petition in the Melbourne Registry of the High Court disputing the election of all Senators for the State of Victoria In his petition Mr McClure asserted his entitlement to vote and to be a candidate at the Victorian Senate election and asserted the following two grounds for his petition

That the platform of candidacy of the petitioner was not given media coverage despite requests andor demands for such coverage to the various media bodies and that denial of such media coverage is against the principles of fair democratic elections which is a foundation of the Constitution and that were such coverage granted the result of the election would in the greater probability have been significantly different

That the petitioner was disadvantaged under ss 211 and 211A of the Commonwealth Electoral Act 1918 by not having a right to a ldquoticket voterdquo and that such disadvantage has in the greater probability significantly affected the outcome of this election and that such disadvantagement is against the interests of a true and fair democratic process which forms the foundation of our constitution

612 The petitioner Mr McClure asked the Court to declare the Victorian Senate election void and the six Senators not duly elected The petitioner also sought four other kinds of relief

bull the return from the AEC of his $700 nomination fee (the deposit claim) bull that the Court ldquoinstructrdquo the AEC to make provision for ticket voting for

independent candidates in all future elections for the Senate (the ticket voting claim)

bull that ldquothe Chiefs of Staffs of the media bodies be informally instructed by the Court to make provision for and ensure proper coverage of press releases and policy launches by independent candidates andor that some form of caution be given to said media bodies regarding the intrinsically incumbent responsibilities they have within our democratic process to discern and report important election issues raised by independentsrdquo (the publicity claim) and

bull that leave be granted to join this petition and certain other petitions now pending in the Court ldquoas a class-action before the Full Bench of the High Courtrdquo (the class action claim)

613 Mr McClurersquos petition was identical to four other petitions filed with the High Court in Registries around the nation disputing the half-Senate elections in those States and the Northern Territory The five identical petitions also sought a ldquoclass actionrdquo hearing and were as follows

NT Senate Polke v AEC filed Darwin 2 December 1998 NSW Senate Vaughan v AEC filed Sydney 7 December 1998 WA Senate Garcia v AEC filed Perth 7 December 1998 Vic Senate McClure v AEC filed Melbourne 8 December 1998 Tas Senate Heathorn v AEC filed Hobart 8 December 1998

614 However as it appeared that Mr McClure was willing for his petition to be actioned first as a ldquotest caserdquo for the other four petitions a summons was filed by the AEC on 10 March 1999 for a directions hearing before the High Court in McClure v AEC in Melbourne on 29 March

615 The AEC summons sought orders that the petition be dismissed or alternatively that the petition be stayed on the ground that there was no reasonable or probable cause of action or suit or that the proceeding was an abuse of the powers of the Court In support of the summons an affidavit was filed with the Court by Mr Geoffrey McCarthy of the Australian Government Solicitor (AGS) on behalf of the AEC

616 Because the petition might have raised constitutional matters a Notice of a Constitutional Matter under section 78B of the Judiciary Act 1903 was filed with the Court by the AEC on 17 March and provided to the petitioner and to the Attorneys-General for the Commonwealth and the States and Territories

617 On 29 March Mr Geoffrey McCarthy of AGS filed an affidavit with the Court advising that he was acting on behalf of the AEC applying for the orders sought in the summons of 10 March and advising that the written submissions of the AEC had been forwarded to the Court and to the petitioner on 25 March

618 At the directions hearing on the McClure petition on 29 March 1999 in Melbourne before Justice Hayne of the High Court sitting as the Court of Disputed Returns Mr Gageler of counsel appeared for the AEC and Mr McClure represented himself

619 Justice Hayne immediately registered his concern that 384 people had entered an appearance in the petition but had apparently not been advised of the hearings on that day His Honour was concerned that these people should have the opportunity to be heard in the proceedings should they wish to do so The respondent to the petition the AEC had not been made aware of these 384 appearances ldquoin support of the petitionerrdquo until immediately prior to the commencement of the court proceedings

6110 Justice Hayne made the following orders on 29 March 1999

1 Adjourn further hearing of summons dated 10 March 1999 to 27 April at 930 am Melbourne 2 Direct that notice of the application made by that summons shall be sufficiently given by the Australian Electoral Commission giving notice to the other parties to the proceedings upon the petition of the further hearing of that summons by posting on or before 7 April 1999 by prepaid ordinary post to the address for service of each of the parties to the proceedings upon the petition (other than the petitioner and respondent) a notice substantially in the form of the schedule to this order 3 Reserve costs 4 Certify for counsel

6111 In compliance with the orders of the Court by letters on 31 March and 1 April Mr Geoffrey McCarthy of the AGS acting for the AEC wrote to each of the 384 persons who had entered an appearance advising them of the proceedings and attaching copy of the Court orders and the relevant notice

6112 From around 6 April the office of the AGS in Canberra and the Court Registry in Melbourne received an avalanche of phone calls or correspondence from these persons complaining that they knew nothing about the petition had never met Mr McClure and to their knowledge had not signed any document entering an appearance in the petition Some of them recalled signing a ldquopetitionrdquo in the street but thought it had been about other matters such as animal welfare or suburban parking restrictions Complaints were also made to the AEC directly in one instance claiming that the AEC had released a personrsquos name in contravention of the Privacy Act (which was not the case) These persons were referred by the AGS for further information either to Mr McClure the petitioner or to the Court Registry

6113 On 9 April Mr McCarthy of the AGS on behalf of the AEC wrote a further letter to these 384 persons outlining the grounds of the McClure petition explaining that it was Mr McClure who had filed their Notices of Appearance with the Court on their behalf and advising that the AEC was the respondent to the petition and had no part in them becoming involved in the matter On 26 April Mr McCarthy filed an affidavit with the Court advising the action taken in compliance with the orders of the Court

6114 On 27 April the hearing of the AEC summons to have the petition dismissed or stayed resumed before Justice Hayne in Melbourne Mr Gageler of counsel appeared for the AEC with Mr Geoffrey McCarthy and Mr McClure represented himself Only one of the 384 persons Mr McClure claimed supported his petition appeared in person Mr Cecil Murgatroyd made a short submission in support of the McClure petition towards the end of the hearing Another person Ms Kelly Buzza was represented by Mr Terry Shiels who submitted that she had not understood that the documents she had signed constituted an entry of appearance to the petition

6115 Largely as a matter of procedural fairness to Mr McClure Mr Gageler for the AEC took the Court through the various relevant provisions of the Electoral Act and summarised the arguments as to why the petition failed to comply with section 355(a) of the Act which requires the petitioner to set out the facts relied on to invalidate the election and section 355(aa) of the Act which requires the petitioner to set out those facts with sufficient particularity In reply Mr McClure did not really address the submissions of the AEC but instead gave more of a political speech about the alleged unfairness of independent Senate candidates being denied access to group ticket voting

6116 In the course of the hearings Mr McClure sought to amend his petition by alleging that sections 211 and 211A of the Electoral Act which deal with ticket voting for Senate elections are not valid laws of the Parliament because there was no proper Royal Assent to the bills by which those sections were inserted in the Act Mr McClure asserted that Australia became a sovereign and independent nation at or after the time of the Treaty of Versailles and accordingly Royal Assent to or on behalf of a person who is the sovereign of the United Kingdom was of no effect

6117 Justice Hayne gave Mr McClure several opportunities to ensure that he had addressed the Court on everything he wished to say and repeated back to Mr McClure his understanding of Mr McClurersquos submissions to ensure that there was no misunderstanding On each occasion Mr McClure agreed that the Court understood his point of view On several occasions Justice Hayne also made it clear to Mr McClure that ldquothere would be no tomorrowrdquo and that he should make sure he covered everything in support of his allegations and claims Justice Hayne then reserved his decision

6118 On 24 June 1999 Justice Hayne delivered his decision ordering that the McClure petition be dismissed and that the petitioner Mr McClure pay the costs of the respondent the AEC

6119 In his decision in McClure v AEC (1999) 73 ALJR 1086 at Attachment 5 Justice Hayne formally refused Mr McClurersquos application at the time of the hearing to amend his petition so as to allege that sections 211 and 211A of the Electoral Act were not valid laws of the Parliament His Honour concluded that the law to be applied by the courts is to be found in covering clause 5 to the Constitution and said further

In so far as the petitioner relies on some alleged deficiency in the signification of Royal Assent it is ss 58 59 and 60 of the Constitution that deal with the ways in which the Royal Assent may be given to bills passed by the other elements of the Parliament So far as is now relevant s 58 governs It provides that the Governor-General ldquoshall declare according to his discretion but subject to this Constitution that he assents in the Queenrsquos namerdquo There is nothing to suggest that that this was not done in the case of the Acts that introduced s 211 and s 211A into the Act The history of the international dealings to which the petitioner referred is not the point

It is in these circumstances not necessary to consider whether ss 355(e) and 358 of the Act preclude amendment because it is sought more than 40 days after the return of the writ The respondentrsquos reliance on those provisions assumes that they are valid The petitionerrsquos proposed amendment might appear to attempt to cast doubt on that validity But as I have indicated earlier the arguments against validity must fail and the amendments proposed would be futile

6120 In dismissing the petition Justice Hayne dealt firstly in his judgment with the petitionerrsquos claims for relief other than the actual voiding of the election The first of these claims was the ldquodeposit claimrdquo for the return of the petitionerrsquos Senate nomination deposit of $700

The petitioner seeks the return of the sum deposited by him in accordance with s 170(2) of the Act hellip He characterises this deposit as ldquoconfirmation of a contractrdquo between the petitioner and the respondent and says in effect that consideration for the contract wholly failed (or there was no meeting of minds) because the electoral process was not as he supposed it to be ndash one in which ldquono one candidate would be disadvantaged abovehellipanotherrdquo

There are at least two answers to this contention First the statutory requirement that a deposit is paid by or on behalf of the person nominated is not a requirement that leads to the formation of a contract between the respondent and the nominee or a person who pays the deposit on behalf of the nominee The Act prescribes the circumstances in which the deposit is to be forfeited and those circumstances came to pass in the petitionerrsquos case ndash the number of votes polled in his favour as first preferences was less than 4 per cent of the total number of votes polled as first preferences Questions of consideration failure of consideration or meeting of the minds simply do not arise and the claim must therefore fail

Secondly it may be very much doubted that the Court has power to order the return of a candidatersquos deposit No such power is included in the list of powers of the Court given by s 360(1) and although that list is not exhaustive the petitioner was not able to point to any basis for concluding that the Court does not have the power for which he contends This claim must fail

6121 The second of the petitionerrsquos claims for relief other than the voiding of the election was the ldquopublicity claimrdquo which Justice Hayne dealt with as follows

It is not clear what the petitioner means when he says that the Court should ldquoinformally instructrdquo the chiefs of staff of media bodies about how they should act in the future If he seeks to have the Court give some advice to these persons it is enough to say that this is not the Courtrsquos function If he seeks to have the Court make some order about future conduct there is no basis in the Act for concluding that the Court has any power to do so There being no power to do so the further questions that might then have arisen about framing an order with sufficient certainty need not be considered The relief claimed cannot be given

6122 The third of the petitionerrsquos claims for relief other than the voiding of the election was the ldquoticket votingrdquo claim which Justice Hayne dealt with as follows

For like reasons there is no basis upon which the Court might lawfully ldquoinstructrdquo the respondent about the conduct of future elections Future elections must be conducted according to law The relief claimed cannot be given

6123 The fourth of the petitionerrsquos claims for relief other than the voiding of the election was the ldquoclass actionrdquo claim which Justice Hayne dealt with as follows

The question of joining this petition to other petitions pending in the Court as some form of class action is a question that relates only to how this petition is to be dealt with it is not a question that touches the merits of the complaints that the petitioner makes It is therefore not a question that affects whether the orders sought by the respondent should now be made That being said however it is to be recalled that in Muldowney v Australian Electoral Commission Brennan ACJ held that the jurisdiction to declare an election void on the petition of a person qualified to vote at that election is a power limited to those elections in which the petitioner was entitled to vote and did not extend to power to declare the entirety of a general election void

It may be as the respondent contended that the attempt to have petitions form a class action was to try to overcome these decisions But the validity and force of the respondentrsquos contention in this regard would depend upon what was said to follow from ldquojoiningrdquo petitions as a ldquoclass actionrdquo The petitioner pointed to no provision of the Act or the High Court Rules that contemplates joining petitions as a class action and the point was not examined in any detail in the course of argument Because these are not matters that affect whether the orders sought by the respondent should be made it is not necessary to explore them further

6124 The central claim for relief by the petitioner was the claim to void the half-Senate election for the State of Victoria and declare the six Victorian Senators not duly elected Justice Hayne described the argument submitted by the AEC against the petition as follows

The principal focus of argument was on the petitionerrsquos claim that the election in question should be declared void As to that the respondent submitted that the petition should be stayed or dismissed because first it does not comply with s 355 of the Act secondly it alleges no ldquoillegal practicerdquo as that term is defined in the Act (a breach of the Act or regulations) and therefore the Court has no jurisdiction to avoid the election and thirdly it fails to raise any ground which would justify the avoidance of the election it seeks to challenge

6125 His Honour then discussed the various relevant provisions of section 355 of the Electoral Act which sets down the requirements for a petition and section 362(3) of the Act which provides for the voiding of an election for illegal practices Justice Hayne made the following comment on section 362(3)

In Webster v Deahm Gaudron J held that hellip

ldquothe very minimum assertion necessary to constitute a fact which will lsquoinvalidate [an] election or returnrsquo for the purposes of s 355(a) of the Act is one raising a matter or matters by which lsquothe election was likely to be affectedrsquordquo

No doubt it was in light of this that the respondent submitted that a petition must be dismissed if it does not set out facts which if proved would establish that there are available grounds for invalidating the election and the election was likely to be affected on those grounds

That submission proceeded from the premise that s 362(3) is an exhaustive statement of the circumstances in which the Court may declare an election void Put in that way the submission may very well be stated too broadly In Hudson v Lee Gaudron J held that s 352(1) of the Act identified exhaustively the practices which might properly found a petition under Div 1 Nevertheless the respondent submitted that I need not form any concluded view on that question because (so it was submitted) the facts alleged in the petition if established would not entitle the petitioner to an order avoiding the election

6126 Justice Hayne then turned to the facts that were alleged by the petitioner In response to the first complaint about the lack of media coverage for the petitioner His Honour said the following

The first complaint depends upon the contention that there has been some breach of an implied freedom of communication in relation to the political and electoral processhellipThe short answer to this first complaint is that the freedom of communication implied in the Constitution is not an obligation to publicise The freedom is a freedom from government action it is not a right to require others to provide a means of communication The petitionerrsquos case depends upon him having some right to require others to disseminate his views But as was said in Lange v Australian Broadcasting Corporation

ss 7 and 24 and the related sections of the Constitution necessarily protect that freedom of communication between the people concerning political or government matters which enables the people to exercise a free and informed choice as electors Those sections do not confer personal rights on individuals Rather they preclude the curtailment of the protected freedom by the exercise of legislative or executive power As Deane J said in Theophanous they are lsquoa limitation or confinement of laws and powers [which] gives rise to a pro tanto immunity on the part of the citizen from being adversely affected by those laws or by the exercise of those powers rather than to a ldquorightrdquo in the strict sensersquo In Cunliffe v The Commonwealth Brennan J pointed out that the freedom confers no rights on individuals and to the extent that the freedom rests upon implication that implication defines the nature an extent of the freedom His Honour said

lsquoThe implication is negative in nature it invalidates laws and consequently creates an area of immunity from legal control particularly from legislative controlrsquordquo

6127 In response to the second complaint about the application of the provisions of the Act dealing with the grouping of Senate candidates Justice Hayne reviewed previous court decisions on this issue as follows

The constitutional validity of provisions like s 211 has twice been considered ndash in McKenzie v The Commonwealth and in Abbotto v Australian Electoral Commission At the time of McKenzie the Act was cast in slightly different terms and did not contain s 211A Gibbs CJ rejected a submission that the group voting system then provided for the election of Senators was contrary to s 7 or 16 of the Constitution and held that the provisions then in force did not ldquoso [offend] democratic principles as to render the sections beyond the power of the Parliament to enactrdquo In Abbotto Dawson J held that there was no substance to the contention that the voting system provided for by ss 211 and 211A contravened s 10 of the Constitution The petition in this matter did not explicitly challenge the constitutional validity of ss 211 and 211A The petitioner sought to add such a challenge by the amendments I have mentioned earlier but for the reasons I have set out that challenge is not sustainable

6128 His Honour then dismissed the petitionerrsquos arguments in relation to ticket voting for Senate elections as follows

The petitioner alleges that the provisions are ldquounfairrdquo and asserts that s 211 (and perhaps s 211A) is not a reasonably proportionate regulation of the subject matter He prays in aid of this submission that the Court is obliged by s 364 to be ldquoguided by the substantial merits and good conscience of each case without regard to legal forms or technicalitiesrdquo

Read in the context of the Act s 364 and its reference to ldquosubstantial merits and good consciencerdquo is to be understood as directing the Court about how it should set about its task of deciding the issues presented under the Act by the petition it does not give the Court some power to rewrite the Act to accord with some abstract standard of fairness If the provisions made in the Act for election of Senators are valid laws of the Parliament it is not to the point for the Court to attempt to characterise those provisions as ldquofairrdquo or ldquounfairrdquo In particular s 364 gives no warrant for the Court declaring void an election conducted in accordance with valid legislative requirements

Thus if ss 211 and 211A are valid laws of the Parliament an election conducted in accordance with these provisions (and the other applicable provisions of the Act) cannot be held to be void The asserted challenge to validity is as I have said without foundation It follows that the second of the petitionerrsquos complaints fails

6129 Finally Justice Hayne made comment on the conduct of the proceedings by the petitioner in entering appearances for 384 other persons who he claimed supported his petition

Before parting with this matter it is as well to say something of the way in which the provisions permitting the entry of appearance by persons entitled to vote at the election in question have operated in this case As I have noted earlier more than 380 appearances were filed It goes without saying that the number of persons appearing made the conduct of the proceeding more difficult and costly than it would have been if the only parties to it were the petitioner and the respondent More troubling were the suggestions in an affidavit filed on behalf of the respondent first that some of those who entered an appearance may have been misled about what they were doing (or at least may not have understood the significance of the step they were taking) and second that some persons given notice of the proceeding because notice of appearance had been given in their name denied that they knew anything at all about the matter and denied entering an appearance I have however embarked on no inquiry about these assertions and make no finding about them

6130 His Honour concluded his judgment by dismissing the petition and ordered that the petitioner pay the costs of the respondent the AEC

6131 Following the conclusion of this case the AGS referred the matter of the 384 appearances filed with the Court by Mr McClure ostensibly in support of his petition to the Australian Federal Police for investigation of a possible offence under the Crimes Act 1914

62 The Related Petitions

621 The McClure v AEC petition was identical to four other petitions filed with the High Court in Registries around the nation disputing the half-Senate elections in those States and the Senate election for the Northern Territory The five identical petitions also sought a ldquoclass actionrdquo hearing and were as follows

NT Senate Polke v AEC filed Darwin 2 December 1998 NSW Senate Vaughan v AEC filed Sydney 7 December 1998 WA Senate Garcia v AEC filed Perth 7 December 1998 Vic Senate McClure v AEC filed Melbourne 8 December 1998 Tas Senate Heathorn v AEC filed Hobart 8 December 1998

622 On the dismissal of the McClure v AEC petition by Justice Hayne on 24 June 1999 Mr Geoffrey McCarthy of AGS acting on behalf of the AEC filed summonses and affidavits on 8 July 1999 seeking orders in each of remaining four petitions that the petitions be dismissed or stayed

623 On 9 July 1999 the four petitioners all unsuccessful independent Senate candidates were served by Mr McCarthy of AGS on behalf of the AEC with similar summonses and affidavits to those filed in the McClure petition by the AEC The petitioners were further advised that should they notify Mr McCarthy before 16 July 1999 of their intention not to oppose the application by the AEC for dismissal of the petitions then the AEC would not seek costs against them

624 The petitioners Mr Garcia Mr Polke and Mr Vaughan advised Mr McCarthy on 14 July 1999 that they would not oppose the applications by the AEC for the dismissal of their petitions The fourth petitioner Mr Heathorn advised Mr McCarthy on 21 July 1999 that he would not oppose the AEC application for dismissal The petitioners also advised the Court of their intentions not to oppose the AEC application

625 On 22 July 1999 before Justice Hayne of the Court of Disputed Returns in Canberra a video-link was established with Perth Darwin Sydney and Hobart to enable the petitioners to be heard if they so wished Mr Gageler of counsel represented the AEC with Mr Geoffrey McCarthy and there was no appearance by the petitioners or by any of the other persons who had filed appearances in support of the petitioners Justice Hayne delivered the same decision in each of the petition as follows

The petition is not materially different from the petition I considered in the matter of McClure v Australian Electoral Commission (1999) 163 ALR 734 For the reasons I gave in that matter this petition cannot succeed It is dismissed The respondent does not seek costs and there is no order as to costs

7 Implications of the McClure Decision

71 Senate Group Ticket Voting

711 It is not unusual for independent Senate candidates to belatedly discover generally at the time of nomination that they are not entitled to appear on the ballot paper as a group ldquoabove the linerdquo and thereby take advantage of the ticket voting system for the Senate This may give rise to some protest at the ldquofairnessrdquo of sections 211 and 211A of the Electoral Act and can result in petitions to the Court of Disputed Returns after the election on the grounds that the law is both unconstitutional and ldquounfairrdquo to independent candidates

712 In McKenzie v The Commonwealth (1984) 59 ALJR 190 and in Abbotto v AEC (1997) 71 ALJR 675 the High Court has confirmed that the Senate group ticket voting system is not unconstitutional In McKenzie Gibbs CJ held that that the relevant provisions did not ldquoso offend democratic principles as to render the sections beyond the power of the Parliament to enactrdquo In Abbotto Dawson J held that the relevant provisions did not contravene section 10 of the Constitution McClure v AEC (1999) 73 ALJR 1086 is in accordance with these previous decisions in relation to the constitutionality of the Senate group ticket voting system

713 Further confirmation of the validity of the Senate group voting system is evidenced by the dismissal by the Federal Court of an injunction application on similar grounds by Mr Hodgetts just prior to polling day for the 1998 federal election (Hodgetts v AEC Dowsett J 2 October 1998 unreported) (see paras 1226 to 1228 of AEC submission No 88 of 12 March 1999)

714 In the McClure petition and proceedings it was also claimed that the provisions are ldquounfairrdquo to independents and that section 364 of the Electoral Act required the Court to make a finding that the election was therefore void Section 364 of the Electoral Act is entitled ldquoReal justice to be observedrdquo and provides as follows

The Court shall be guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities or whether the evidence before it is in accordance with the law of evidence or not

715 Petitioners occasionally invoke this provision in their submissions to the Court arguing that it means that elements of the rule of law should not apply to proceedings in election petitions and that the Court should take into its consideration whether or not a particular law is ldquofairrdquo or ldquounfairrdquo As noted by Gleeson CJ Gummow and Hayne JJ in Sue v Hill (1999) 73 ALJR 1016 at 1025

Provisions of this typehellipdo not exonerate the Court from the application of substantive rules of law and are consistent with and indeed require the application of the rules of procedural fairness

6 Proceedings in McClure v AEC and related Petitions

61 The McClure Petition

611 On 8 December 1998 Mr Malcolm McClure an unsuccessful independent candidate at the Victorian half-Senate election on 3 October 1998 filed a petition in the Melbourne Registry of the High Court disputing the election of all Senators for the State of Victoria In his petition Mr McClure asserted his entitlement to vote and to be a candidate at the Victorian Senate election and asserted the following two grounds for his petition

That the platform of candidacy of the petitioner was not given media coverage despite requests andor demands for such coverage to the various media bodies and that denial of such media coverage is against the principles of fair democratic elections which is a foundation of the Constitution and that were such coverage granted the result of the election would in the greater probability have been significantly different

That the petitioner was disadvantaged under ss 211 and 211A of the Commonwealth Electoral Act 1918 by not having a right to a ldquoticket voterdquo and that such disadvantage has in the greater probability significantly affected the outcome of this election and that such disadvantagement is against the interests of a true and fair democratic process which forms the foundation of our constitution

612 The petitioner Mr McClure asked the Court to declare the Victorian Senate election void and the six Senators not duly elected The petitioner also sought four other kinds of relief

bull the return from the AEC of his $700 nomination fee (the deposit claim) bull that the Court ldquoinstructrdquo the AEC to make provision for ticket voting for

independent candidates in all future elections for the Senate (the ticket voting claim)

bull that ldquothe Chiefs of Staffs of the media bodies be informally instructed by the Court to make provision for and ensure proper coverage of press releases and policy launches by independent candidates andor that some form of caution be given to said media bodies regarding the intrinsically incumbent responsibilities they have within our democratic process to discern and report important election issues raised by independentsrdquo (the publicity claim) and

bull that leave be granted to join this petition and certain other petitions now pending in the Court ldquoas a class-action before the Full Bench of the High Courtrdquo (the class action claim)

613 Mr McClurersquos petition was identical to four other petitions filed with the High Court in Registries around the nation disputing the half-Senate elections in those States and the Northern Territory The five identical petitions also sought a ldquoclass actionrdquo hearing and were as follows

NT Senate Polke v AEC filed Darwin 2 December 1998 NSW Senate Vaughan v AEC filed Sydney 7 December 1998 WA Senate Garcia v AEC filed Perth 7 December 1998 Vic Senate McClure v AEC filed Melbourne 8 December 1998 Tas Senate Heathorn v AEC filed Hobart 8 December 1998

614 However as it appeared that Mr McClure was willing for his petition to be actioned first as a ldquotest caserdquo for the other four petitions a summons was filed by the AEC on 10 March 1999 for a directions hearing before the High Court in McClure v AEC in Melbourne on 29 March

615 The AEC summons sought orders that the petition be dismissed or alternatively that the petition be stayed on the ground that there was no reasonable or probable cause of action or suit or that the proceeding was an abuse of the powers of the Court In support of the summons an affidavit was filed with the Court by Mr Geoffrey McCarthy of the Australian Government Solicitor (AGS) on behalf of the AEC

616 Because the petition might have raised constitutional matters a Notice of a Constitutional Matter under section 78B of the Judiciary Act 1903 was filed with the Court by the AEC on 17 March and provided to the petitioner and to the Attorneys-General for the Commonwealth and the States and Territories

617 On 29 March Mr Geoffrey McCarthy of AGS filed an affidavit with the Court advising that he was acting on behalf of the AEC applying for the orders sought in the summons of 10 March and advising that the written submissions of the AEC had been forwarded to the Court and to the petitioner on 25 March

618 At the directions hearing on the McClure petition on 29 March 1999 in Melbourne before Justice Hayne of the High Court sitting as the Court of Disputed Returns Mr Gageler of counsel appeared for the AEC and Mr McClure represented himself

619 Justice Hayne immediately registered his concern that 384 people had entered an appearance in the petition but had apparently not been advised of the hearings on that day His Honour was concerned that these people should have the opportunity to be heard in the proceedings should they wish to do so The respondent to the petition the AEC had not been made aware of these 384 appearances ldquoin support of the petitionerrdquo until immediately prior to the commencement of the court proceedings

6110 Justice Hayne made the following orders on 29 March 1999

1 Adjourn further hearing of summons dated 10 March 1999 to 27 April at 930 am Melbourne 2 Direct that notice of the application made by that summons shall be sufficiently given by the Australian Electoral Commission giving notice to the other parties to the proceedings upon the petition of the further hearing of that summons by posting on or before 7 April 1999 by prepaid ordinary post to the address for service of each of the parties to the proceedings upon the petition (other than the petitioner and respondent) a notice substantially in the form of the schedule to this order 3 Reserve costs 4 Certify for counsel

6111 In compliance with the orders of the Court by letters on 31 March and 1 April Mr Geoffrey McCarthy of the AGS acting for the AEC wrote to each of the 384 persons who had entered an appearance advising them of the proceedings and attaching copy of the Court orders and the relevant notice

6112 From around 6 April the office of the AGS in Canberra and the Court Registry in Melbourne received an avalanche of phone calls or correspondence from these persons complaining that they knew nothing about the petition had never met Mr McClure and to their knowledge had not signed any document entering an appearance in the petition Some of them recalled signing a ldquopetitionrdquo in the street but thought it had been about other matters such as animal welfare or suburban parking restrictions Complaints were also made to the AEC directly in one instance claiming that the AEC had released a personrsquos name in contravention of the Privacy Act (which was not the case) These persons were referred by the AGS for further information either to Mr McClure the petitioner or to the Court Registry

6113 On 9 April Mr McCarthy of the AGS on behalf of the AEC wrote a further letter to these 384 persons outlining the grounds of the McClure petition explaining that it was Mr McClure who had filed their Notices of Appearance with the Court on their behalf and advising that the AEC was the respondent to the petition and had no part in them becoming involved in the matter On 26 April Mr McCarthy filed an affidavit with the Court advising the action taken in compliance with the orders of the Court

6114 On 27 April the hearing of the AEC summons to have the petition dismissed or stayed resumed before Justice Hayne in Melbourne Mr Gageler of counsel appeared for the AEC with Mr Geoffrey McCarthy and Mr McClure represented himself Only one of the 384 persons Mr McClure claimed supported his petition appeared in person Mr Cecil Murgatroyd made a short submission in support of the McClure petition towards the end of the hearing Another person Ms Kelly Buzza was represented by Mr Terry Shiels who submitted that she had not understood that the documents she had signed constituted an entry of appearance to the petition

6115 Largely as a matter of procedural fairness to Mr McClure Mr Gageler for the AEC took the Court through the various relevant provisions of the Electoral Act and summarised the arguments as to why the petition failed to comply with section 355(a) of the Act which requires the petitioner to set out the facts relied on to invalidate the election and section 355(aa) of the Act which requires the petitioner to set out those facts with sufficient particularity In reply Mr McClure did not really address the submissions of the AEC but instead gave more of a political speech about the alleged unfairness of independent Senate candidates being denied access to group ticket voting

6116 In the course of the hearings Mr McClure sought to amend his petition by alleging that sections 211 and 211A of the Electoral Act which deal with ticket voting for Senate elections are not valid laws of the Parliament because there was no proper Royal Assent to the bills by which those sections were inserted in the Act Mr McClure asserted that Australia became a sovereign and independent nation at or after the time of the Treaty of Versailles and accordingly Royal Assent to or on behalf of a person who is the sovereign of the United Kingdom was of no effect

6117 Justice Hayne gave Mr McClure several opportunities to ensure that he had addressed the Court on everything he wished to say and repeated back to Mr McClure his understanding of Mr McClurersquos submissions to ensure that there was no misunderstanding On each occasion Mr McClure agreed that the Court understood his point of view On several occasions Justice Hayne also made it clear to Mr McClure that ldquothere would be no tomorrowrdquo and that he should make sure he covered everything in support of his allegations and claims Justice Hayne then reserved his decision

6118 On 24 June 1999 Justice Hayne delivered his decision ordering that the McClure petition be dismissed and that the petitioner Mr McClure pay the costs of the respondent the AEC

6119 In his decision in McClure v AEC (1999) 73 ALJR 1086 at Attachment 5 Justice Hayne formally refused Mr McClurersquos application at the time of the hearing to amend his petition so as to allege that sections 211 and 211A of the Electoral Act were not valid laws of the Parliament His Honour concluded that the law to be applied by the courts is to be found in covering clause 5 to the Constitution and said further

In so far as the petitioner relies on some alleged deficiency in the signification of Royal Assent it is ss 58 59 and 60 of the Constitution that deal with the ways in which the Royal Assent may be given to bills passed by the other elements of the Parliament So far as is now relevant s 58 governs It provides that the Governor-General ldquoshall declare according to his discretion but subject to this Constitution that he assents in the Queenrsquos namerdquo There is nothing to suggest that that this was not done in the case of the Acts that introduced s 211 and s 211A into the Act The history of the international dealings to which the petitioner referred is not the point

It is in these circumstances not necessary to consider whether ss 355(e) and 358 of the Act preclude amendment because it is sought more than 40 days after the return of the writ The respondentrsquos reliance on those provisions assumes that they are valid The petitionerrsquos proposed amendment might appear to attempt to cast doubt on that validity But as I have indicated earlier the arguments against validity must fail and the amendments proposed would be futile

6120 In dismissing the petition Justice Hayne dealt firstly in his judgment with the petitionerrsquos claims for relief other than the actual voiding of the election The first of these claims was the ldquodeposit claimrdquo for the return of the petitionerrsquos Senate nomination deposit of $700

The petitioner seeks the return of the sum deposited by him in accordance with s 170(2) of the Act hellip He characterises this deposit as ldquoconfirmation of a contractrdquo between the petitioner and the respondent and says in effect that consideration for the contract wholly failed (or there was no meeting of minds) because the electoral process was not as he supposed it to be ndash one in which ldquono one candidate would be disadvantaged abovehellipanotherrdquo

There are at least two answers to this contention First the statutory requirement that a deposit is paid by or on behalf of the person nominated is not a requirement that leads to the formation of a contract between the respondent and the nominee or a person who pays the deposit on behalf of the nominee The Act prescribes the circumstances in which the deposit is to be forfeited and those circumstances came to pass in the petitionerrsquos case ndash the number of votes polled in his favour as first preferences was less than 4 per cent of the total number of votes polled as first preferences Questions of consideration failure of consideration or meeting of the minds simply do not arise and the claim must therefore fail

Secondly it may be very much doubted that the Court has power to order the return of a candidatersquos deposit No such power is included in the list of powers of the Court given by s 360(1) and although that list is not exhaustive the petitioner was not able to point to any basis for concluding that the Court does not have the power for which he contends This claim must fail

6121 The second of the petitionerrsquos claims for relief other than the voiding of the election was the ldquopublicity claimrdquo which Justice Hayne dealt with as follows

It is not clear what the petitioner means when he says that the Court should ldquoinformally instructrdquo the chiefs of staff of media bodies about how they should act in the future If he seeks to have the Court give some advice to these persons it is enough to say that this is not the Courtrsquos function If he seeks to have the Court make some order about future conduct there is no basis in the Act for concluding that the Court has any power to do so There being no power to do so the further questions that might then have arisen about framing an order with sufficient certainty need not be considered The relief claimed cannot be given

6122 The third of the petitionerrsquos claims for relief other than the voiding of the election was the ldquoticket votingrdquo claim which Justice Hayne dealt with as follows

For like reasons there is no basis upon which the Court might lawfully ldquoinstructrdquo the respondent about the conduct of future elections Future elections must be conducted according to law The relief claimed cannot be given

6123 The fourth of the petitionerrsquos claims for relief other than the voiding of the election was the ldquoclass actionrdquo claim which Justice Hayne dealt with as follows

The question of joining this petition to other petitions pending in the Court as some form of class action is a question that relates only to how this petition is to be dealt with it is not a question that touches the merits of the complaints that the petitioner makes It is therefore not a question that affects whether the orders sought by the respondent should now be made That being said however it is to be recalled that in Muldowney v Australian Electoral Commission Brennan ACJ held that the jurisdiction to declare an election void on the petition of a person qualified to vote at that election is a power limited to those elections in which the petitioner was entitled to vote and did not extend to power to declare the entirety of a general election void

It may be as the respondent contended that the attempt to have petitions form a class action was to try to overcome these decisions But the validity and force of the respondentrsquos contention in this regard would depend upon what was said to follow from ldquojoiningrdquo petitions as a ldquoclass actionrdquo The petitioner pointed to no provision of the Act or the High Court Rules that contemplates joining petitions as a class action and the point was not examined in any detail in the course of argument Because these are not matters that affect whether the orders sought by the respondent should be made it is not necessary to explore them further

6124 The central claim for relief by the petitioner was the claim to void the half-Senate election for the State of Victoria and declare the six Victorian Senators not duly elected Justice Hayne described the argument submitted by the AEC against the petition as follows

The principal focus of argument was on the petitionerrsquos claim that the election in question should be declared void As to that the respondent submitted that the petition should be stayed or dismissed because first it does not comply with s 355 of the Act secondly it alleges no ldquoillegal practicerdquo as that term is defined in the Act (a breach of the Act or regulations) and therefore the Court has no jurisdiction to avoid the election and thirdly it fails to raise any ground which would justify the avoidance of the election it seeks to challenge

6125 His Honour then discussed the various relevant provisions of section 355 of the Electoral Act which sets down the requirements for a petition and section 362(3) of the Act which provides for the voiding of an election for illegal practices Justice Hayne made the following comment on section 362(3)

In Webster v Deahm Gaudron J held that hellip

ldquothe very minimum assertion necessary to constitute a fact which will lsquoinvalidate [an] election or returnrsquo for the purposes of s 355(a) of the Act is one raising a matter or matters by which lsquothe election was likely to be affectedrsquordquo

No doubt it was in light of this that the respondent submitted that a petition must be dismissed if it does not set out facts which if proved would establish that there are available grounds for invalidating the election and the election was likely to be affected on those grounds

That submission proceeded from the premise that s 362(3) is an exhaustive statement of the circumstances in which the Court may declare an election void Put in that way the submission may very well be stated too broadly In Hudson v Lee Gaudron J held that s 352(1) of the Act identified exhaustively the practices which might properly found a petition under Div 1 Nevertheless the respondent submitted that I need not form any concluded view on that question because (so it was submitted) the facts alleged in the petition if established would not entitle the petitioner to an order avoiding the election

6126 Justice Hayne then turned to the facts that were alleged by the petitioner In response to the first complaint about the lack of media coverage for the petitioner His Honour said the following

The first complaint depends upon the contention that there has been some breach of an implied freedom of communication in relation to the political and electoral processhellipThe short answer to this first complaint is that the freedom of communication implied in the Constitution is not an obligation to publicise The freedom is a freedom from government action it is not a right to require others to provide a means of communication The petitionerrsquos case depends upon him having some right to require others to disseminate his views But as was said in Lange v Australian Broadcasting Corporation

ss 7 and 24 and the related sections of the Constitution necessarily protect that freedom of communication between the people concerning political or government matters which enables the people to exercise a free and informed choice as electors Those sections do not confer personal rights on individuals Rather they preclude the curtailment of the protected freedom by the exercise of legislative or executive power As Deane J said in Theophanous they are lsquoa limitation or confinement of laws and powers [which] gives rise to a pro tanto immunity on the part of the citizen from being adversely affected by those laws or by the exercise of those powers rather than to a ldquorightrdquo in the strict sensersquo In Cunliffe v The Commonwealth Brennan J pointed out that the freedom confers no rights on individuals and to the extent that the freedom rests upon implication that implication defines the nature an extent of the freedom His Honour said

lsquoThe implication is negative in nature it invalidates laws and consequently creates an area of immunity from legal control particularly from legislative controlrsquordquo

6127 In response to the second complaint about the application of the provisions of the Act dealing with the grouping of Senate candidates Justice Hayne reviewed previous court decisions on this issue as follows

The constitutional validity of provisions like s 211 has twice been considered ndash in McKenzie v The Commonwealth and in Abbotto v Australian Electoral Commission At the time of McKenzie the Act was cast in slightly different terms and did not contain s 211A Gibbs CJ rejected a submission that the group voting system then provided for the election of Senators was contrary to s 7 or 16 of the Constitution and held that the provisions then in force did not ldquoso [offend] democratic principles as to render the sections beyond the power of the Parliament to enactrdquo In Abbotto Dawson J held that there was no substance to the contention that the voting system provided for by ss 211 and 211A contravened s 10 of the Constitution The petition in this matter did not explicitly challenge the constitutional validity of ss 211 and 211A The petitioner sought to add such a challenge by the amendments I have mentioned earlier but for the reasons I have set out that challenge is not sustainable

6128 His Honour then dismissed the petitionerrsquos arguments in relation to ticket voting for Senate elections as follows

The petitioner alleges that the provisions are ldquounfairrdquo and asserts that s 211 (and perhaps s 211A) is not a reasonably proportionate regulation of the subject matter He prays in aid of this submission that the Court is obliged by s 364 to be ldquoguided by the substantial merits and good conscience of each case without regard to legal forms or technicalitiesrdquo

Read in the context of the Act s 364 and its reference to ldquosubstantial merits and good consciencerdquo is to be understood as directing the Court about how it should set about its task of deciding the issues presented under the Act by the petition it does not give the Court some power to rewrite the Act to accord with some abstract standard of fairness If the provisions made in the Act for election of Senators are valid laws of the Parliament it is not to the point for the Court to attempt to characterise those provisions as ldquofairrdquo or ldquounfairrdquo In particular s 364 gives no warrant for the Court declaring void an election conducted in accordance with valid legislative requirements

Thus if ss 211 and 211A are valid laws of the Parliament an election conducted in accordance with these provisions (and the other applicable provisions of the Act) cannot be held to be void The asserted challenge to validity is as I have said without foundation It follows that the second of the petitionerrsquos complaints fails

6129 Finally Justice Hayne made comment on the conduct of the proceedings by the petitioner in entering appearances for 384 other persons who he claimed supported his petition

Before parting with this matter it is as well to say something of the way in which the provisions permitting the entry of appearance by persons entitled to vote at the election in question have operated in this case As I have noted earlier more than 380 appearances were filed It goes without saying that the number of persons appearing made the conduct of the proceeding more difficult and costly than it would have been if the only parties to it were the petitioner and the respondent More troubling were the suggestions in an affidavit filed on behalf of the respondent first that some of those who entered an appearance may have been misled about what they were doing (or at least may not have understood the significance of the step they were taking) and second that some persons given notice of the proceeding because notice of appearance had been given in their name denied that they knew anything at all about the matter and denied entering an appearance I have however embarked on no inquiry about these assertions and make no finding about them

6130 His Honour concluded his judgment by dismissing the petition and ordered that the petitioner pay the costs of the respondent the AEC

6131 Following the conclusion of this case the AGS referred the matter of the 384 appearances filed with the Court by Mr McClure ostensibly in support of his petition to the Australian Federal Police for investigation of a possible offence under the Crimes Act 1914

62 The Related Petitions

621 The McClure v AEC petition was identical to four other petitions filed with the High Court in Registries around the nation disputing the half-Senate elections in those States and the Senate election for the Northern Territory The five identical petitions also sought a ldquoclass actionrdquo hearing and were as follows

NT Senate Polke v AEC filed Darwin 2 December 1998 NSW Senate Vaughan v AEC filed Sydney 7 December 1998 WA Senate Garcia v AEC filed Perth 7 December 1998 Vic Senate McClure v AEC filed Melbourne 8 December 1998 Tas Senate Heathorn v AEC filed Hobart 8 December 1998

622 On the dismissal of the McClure v AEC petition by Justice Hayne on 24 June 1999 Mr Geoffrey McCarthy of AGS acting on behalf of the AEC filed summonses and affidavits on 8 July 1999 seeking orders in each of remaining four petitions that the petitions be dismissed or stayed

623 On 9 July 1999 the four petitioners all unsuccessful independent Senate candidates were served by Mr McCarthy of AGS on behalf of the AEC with similar summonses and affidavits to those filed in the McClure petition by the AEC The petitioners were further advised that should they notify Mr McCarthy before 16 July 1999 of their intention not to oppose the application by the AEC for dismissal of the petitions then the AEC would not seek costs against them

624 The petitioners Mr Garcia Mr Polke and Mr Vaughan advised Mr McCarthy on 14 July 1999 that they would not oppose the applications by the AEC for the dismissal of their petitions The fourth petitioner Mr Heathorn advised Mr McCarthy on 21 July 1999 that he would not oppose the AEC application for dismissal The petitioners also advised the Court of their intentions not to oppose the AEC application

625 On 22 July 1999 before Justice Hayne of the Court of Disputed Returns in Canberra a video-link was established with Perth Darwin Sydney and Hobart to enable the petitioners to be heard if they so wished Mr Gageler of counsel represented the AEC with Mr Geoffrey McCarthy and there was no appearance by the petitioners or by any of the other persons who had filed appearances in support of the petitioners Justice Hayne delivered the same decision in each of the petition as follows

The petition is not materially different from the petition I considered in the matter of McClure v Australian Electoral Commission (1999) 163 ALR 734 For the reasons I gave in that matter this petition cannot succeed It is dismissed The respondent does not seek costs and there is no order as to costs

7 Implications of the McClure Decision

71 Senate Group Ticket Voting

711 It is not unusual for independent Senate candidates to belatedly discover generally at the time of nomination that they are not entitled to appear on the ballot paper as a group ldquoabove the linerdquo and thereby take advantage of the ticket voting system for the Senate This may give rise to some protest at the ldquofairnessrdquo of sections 211 and 211A of the Electoral Act and can result in petitions to the Court of Disputed Returns after the election on the grounds that the law is both unconstitutional and ldquounfairrdquo to independent candidates

712 In McKenzie v The Commonwealth (1984) 59 ALJR 190 and in Abbotto v AEC (1997) 71 ALJR 675 the High Court has confirmed that the Senate group ticket voting system is not unconstitutional In McKenzie Gibbs CJ held that that the relevant provisions did not ldquoso offend democratic principles as to render the sections beyond the power of the Parliament to enactrdquo In Abbotto Dawson J held that the relevant provisions did not contravene section 10 of the Constitution McClure v AEC (1999) 73 ALJR 1086 is in accordance with these previous decisions in relation to the constitutionality of the Senate group ticket voting system

713 Further confirmation of the validity of the Senate group voting system is evidenced by the dismissal by the Federal Court of an injunction application on similar grounds by Mr Hodgetts just prior to polling day for the 1998 federal election (Hodgetts v AEC Dowsett J 2 October 1998 unreported) (see paras 1226 to 1228 of AEC submission No 88 of 12 March 1999)

714 In the McClure petition and proceedings it was also claimed that the provisions are ldquounfairrdquo to independents and that section 364 of the Electoral Act required the Court to make a finding that the election was therefore void Section 364 of the Electoral Act is entitled ldquoReal justice to be observedrdquo and provides as follows

The Court shall be guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities or whether the evidence before it is in accordance with the law of evidence or not

715 Petitioners occasionally invoke this provision in their submissions to the Court arguing that it means that elements of the rule of law should not apply to proceedings in election petitions and that the Court should take into its consideration whether or not a particular law is ldquofairrdquo or ldquounfairrdquo As noted by Gleeson CJ Gummow and Hayne JJ in Sue v Hill (1999) 73 ALJR 1016 at 1025

Provisions of this typehellipdo not exonerate the Court from the application of substantive rules of law and are consistent with and indeed require the application of the rules of procedural fairness

NT Senate Polke v AEC filed Darwin 2 December 1998 NSW Senate Vaughan v AEC filed Sydney 7 December 1998 WA Senate Garcia v AEC filed Perth 7 December 1998 Vic Senate McClure v AEC filed Melbourne 8 December 1998 Tas Senate Heathorn v AEC filed Hobart 8 December 1998

614 However as it appeared that Mr McClure was willing for his petition to be actioned first as a ldquotest caserdquo for the other four petitions a summons was filed by the AEC on 10 March 1999 for a directions hearing before the High Court in McClure v AEC in Melbourne on 29 March

615 The AEC summons sought orders that the petition be dismissed or alternatively that the petition be stayed on the ground that there was no reasonable or probable cause of action or suit or that the proceeding was an abuse of the powers of the Court In support of the summons an affidavit was filed with the Court by Mr Geoffrey McCarthy of the Australian Government Solicitor (AGS) on behalf of the AEC

616 Because the petition might have raised constitutional matters a Notice of a Constitutional Matter under section 78B of the Judiciary Act 1903 was filed with the Court by the AEC on 17 March and provided to the petitioner and to the Attorneys-General for the Commonwealth and the States and Territories

617 On 29 March Mr Geoffrey McCarthy of AGS filed an affidavit with the Court advising that he was acting on behalf of the AEC applying for the orders sought in the summons of 10 March and advising that the written submissions of the AEC had been forwarded to the Court and to the petitioner on 25 March

618 At the directions hearing on the McClure petition on 29 March 1999 in Melbourne before Justice Hayne of the High Court sitting as the Court of Disputed Returns Mr Gageler of counsel appeared for the AEC and Mr McClure represented himself

619 Justice Hayne immediately registered his concern that 384 people had entered an appearance in the petition but had apparently not been advised of the hearings on that day His Honour was concerned that these people should have the opportunity to be heard in the proceedings should they wish to do so The respondent to the petition the AEC had not been made aware of these 384 appearances ldquoin support of the petitionerrdquo until immediately prior to the commencement of the court proceedings

6110 Justice Hayne made the following orders on 29 March 1999

1 Adjourn further hearing of summons dated 10 March 1999 to 27 April at 930 am Melbourne 2 Direct that notice of the application made by that summons shall be sufficiently given by the Australian Electoral Commission giving notice to the other parties to the proceedings upon the petition of the further hearing of that summons by posting on or before 7 April 1999 by prepaid ordinary post to the address for service of each of the parties to the proceedings upon the petition (other than the petitioner and respondent) a notice substantially in the form of the schedule to this order 3 Reserve costs 4 Certify for counsel

6111 In compliance with the orders of the Court by letters on 31 March and 1 April Mr Geoffrey McCarthy of the AGS acting for the AEC wrote to each of the 384 persons who had entered an appearance advising them of the proceedings and attaching copy of the Court orders and the relevant notice

6112 From around 6 April the office of the AGS in Canberra and the Court Registry in Melbourne received an avalanche of phone calls or correspondence from these persons complaining that they knew nothing about the petition had never met Mr McClure and to their knowledge had not signed any document entering an appearance in the petition Some of them recalled signing a ldquopetitionrdquo in the street but thought it had been about other matters such as animal welfare or suburban parking restrictions Complaints were also made to the AEC directly in one instance claiming that the AEC had released a personrsquos name in contravention of the Privacy Act (which was not the case) These persons were referred by the AGS for further information either to Mr McClure the petitioner or to the Court Registry

6113 On 9 April Mr McCarthy of the AGS on behalf of the AEC wrote a further letter to these 384 persons outlining the grounds of the McClure petition explaining that it was Mr McClure who had filed their Notices of Appearance with the Court on their behalf and advising that the AEC was the respondent to the petition and had no part in them becoming involved in the matter On 26 April Mr McCarthy filed an affidavit with the Court advising the action taken in compliance with the orders of the Court

6114 On 27 April the hearing of the AEC summons to have the petition dismissed or stayed resumed before Justice Hayne in Melbourne Mr Gageler of counsel appeared for the AEC with Mr Geoffrey McCarthy and Mr McClure represented himself Only one of the 384 persons Mr McClure claimed supported his petition appeared in person Mr Cecil Murgatroyd made a short submission in support of the McClure petition towards the end of the hearing Another person Ms Kelly Buzza was represented by Mr Terry Shiels who submitted that she had not understood that the documents she had signed constituted an entry of appearance to the petition

6115 Largely as a matter of procedural fairness to Mr McClure Mr Gageler for the AEC took the Court through the various relevant provisions of the Electoral Act and summarised the arguments as to why the petition failed to comply with section 355(a) of the Act which requires the petitioner to set out the facts relied on to invalidate the election and section 355(aa) of the Act which requires the petitioner to set out those facts with sufficient particularity In reply Mr McClure did not really address the submissions of the AEC but instead gave more of a political speech about the alleged unfairness of independent Senate candidates being denied access to group ticket voting

6116 In the course of the hearings Mr McClure sought to amend his petition by alleging that sections 211 and 211A of the Electoral Act which deal with ticket voting for Senate elections are not valid laws of the Parliament because there was no proper Royal Assent to the bills by which those sections were inserted in the Act Mr McClure asserted that Australia became a sovereign and independent nation at or after the time of the Treaty of Versailles and accordingly Royal Assent to or on behalf of a person who is the sovereign of the United Kingdom was of no effect

6117 Justice Hayne gave Mr McClure several opportunities to ensure that he had addressed the Court on everything he wished to say and repeated back to Mr McClure his understanding of Mr McClurersquos submissions to ensure that there was no misunderstanding On each occasion Mr McClure agreed that the Court understood his point of view On several occasions Justice Hayne also made it clear to Mr McClure that ldquothere would be no tomorrowrdquo and that he should make sure he covered everything in support of his allegations and claims Justice Hayne then reserved his decision

6118 On 24 June 1999 Justice Hayne delivered his decision ordering that the McClure petition be dismissed and that the petitioner Mr McClure pay the costs of the respondent the AEC

6119 In his decision in McClure v AEC (1999) 73 ALJR 1086 at Attachment 5 Justice Hayne formally refused Mr McClurersquos application at the time of the hearing to amend his petition so as to allege that sections 211 and 211A of the Electoral Act were not valid laws of the Parliament His Honour concluded that the law to be applied by the courts is to be found in covering clause 5 to the Constitution and said further

In so far as the petitioner relies on some alleged deficiency in the signification of Royal Assent it is ss 58 59 and 60 of the Constitution that deal with the ways in which the Royal Assent may be given to bills passed by the other elements of the Parliament So far as is now relevant s 58 governs It provides that the Governor-General ldquoshall declare according to his discretion but subject to this Constitution that he assents in the Queenrsquos namerdquo There is nothing to suggest that that this was not done in the case of the Acts that introduced s 211 and s 211A into the Act The history of the international dealings to which the petitioner referred is not the point

It is in these circumstances not necessary to consider whether ss 355(e) and 358 of the Act preclude amendment because it is sought more than 40 days after the return of the writ The respondentrsquos reliance on those provisions assumes that they are valid The petitionerrsquos proposed amendment might appear to attempt to cast doubt on that validity But as I have indicated earlier the arguments against validity must fail and the amendments proposed would be futile

6120 In dismissing the petition Justice Hayne dealt firstly in his judgment with the petitionerrsquos claims for relief other than the actual voiding of the election The first of these claims was the ldquodeposit claimrdquo for the return of the petitionerrsquos Senate nomination deposit of $700

The petitioner seeks the return of the sum deposited by him in accordance with s 170(2) of the Act hellip He characterises this deposit as ldquoconfirmation of a contractrdquo between the petitioner and the respondent and says in effect that consideration for the contract wholly failed (or there was no meeting of minds) because the electoral process was not as he supposed it to be ndash one in which ldquono one candidate would be disadvantaged abovehellipanotherrdquo

There are at least two answers to this contention First the statutory requirement that a deposit is paid by or on behalf of the person nominated is not a requirement that leads to the formation of a contract between the respondent and the nominee or a person who pays the deposit on behalf of the nominee The Act prescribes the circumstances in which the deposit is to be forfeited and those circumstances came to pass in the petitionerrsquos case ndash the number of votes polled in his favour as first preferences was less than 4 per cent of the total number of votes polled as first preferences Questions of consideration failure of consideration or meeting of the minds simply do not arise and the claim must therefore fail

Secondly it may be very much doubted that the Court has power to order the return of a candidatersquos deposit No such power is included in the list of powers of the Court given by s 360(1) and although that list is not exhaustive the petitioner was not able to point to any basis for concluding that the Court does not have the power for which he contends This claim must fail

6121 The second of the petitionerrsquos claims for relief other than the voiding of the election was the ldquopublicity claimrdquo which Justice Hayne dealt with as follows

It is not clear what the petitioner means when he says that the Court should ldquoinformally instructrdquo the chiefs of staff of media bodies about how they should act in the future If he seeks to have the Court give some advice to these persons it is enough to say that this is not the Courtrsquos function If he seeks to have the Court make some order about future conduct there is no basis in the Act for concluding that the Court has any power to do so There being no power to do so the further questions that might then have arisen about framing an order with sufficient certainty need not be considered The relief claimed cannot be given

6122 The third of the petitionerrsquos claims for relief other than the voiding of the election was the ldquoticket votingrdquo claim which Justice Hayne dealt with as follows

For like reasons there is no basis upon which the Court might lawfully ldquoinstructrdquo the respondent about the conduct of future elections Future elections must be conducted according to law The relief claimed cannot be given

6123 The fourth of the petitionerrsquos claims for relief other than the voiding of the election was the ldquoclass actionrdquo claim which Justice Hayne dealt with as follows

The question of joining this petition to other petitions pending in the Court as some form of class action is a question that relates only to how this petition is to be dealt with it is not a question that touches the merits of the complaints that the petitioner makes It is therefore not a question that affects whether the orders sought by the respondent should now be made That being said however it is to be recalled that in Muldowney v Australian Electoral Commission Brennan ACJ held that the jurisdiction to declare an election void on the petition of a person qualified to vote at that election is a power limited to those elections in which the petitioner was entitled to vote and did not extend to power to declare the entirety of a general election void

It may be as the respondent contended that the attempt to have petitions form a class action was to try to overcome these decisions But the validity and force of the respondentrsquos contention in this regard would depend upon what was said to follow from ldquojoiningrdquo petitions as a ldquoclass actionrdquo The petitioner pointed to no provision of the Act or the High Court Rules that contemplates joining petitions as a class action and the point was not examined in any detail in the course of argument Because these are not matters that affect whether the orders sought by the respondent should be made it is not necessary to explore them further

6124 The central claim for relief by the petitioner was the claim to void the half-Senate election for the State of Victoria and declare the six Victorian Senators not duly elected Justice Hayne described the argument submitted by the AEC against the petition as follows

The principal focus of argument was on the petitionerrsquos claim that the election in question should be declared void As to that the respondent submitted that the petition should be stayed or dismissed because first it does not comply with s 355 of the Act secondly it alleges no ldquoillegal practicerdquo as that term is defined in the Act (a breach of the Act or regulations) and therefore the Court has no jurisdiction to avoid the election and thirdly it fails to raise any ground which would justify the avoidance of the election it seeks to challenge

6125 His Honour then discussed the various relevant provisions of section 355 of the Electoral Act which sets down the requirements for a petition and section 362(3) of the Act which provides for the voiding of an election for illegal practices Justice Hayne made the following comment on section 362(3)

In Webster v Deahm Gaudron J held that hellip

ldquothe very minimum assertion necessary to constitute a fact which will lsquoinvalidate [an] election or returnrsquo for the purposes of s 355(a) of the Act is one raising a matter or matters by which lsquothe election was likely to be affectedrsquordquo

No doubt it was in light of this that the respondent submitted that a petition must be dismissed if it does not set out facts which if proved would establish that there are available grounds for invalidating the election and the election was likely to be affected on those grounds

That submission proceeded from the premise that s 362(3) is an exhaustive statement of the circumstances in which the Court may declare an election void Put in that way the submission may very well be stated too broadly In Hudson v Lee Gaudron J held that s 352(1) of the Act identified exhaustively the practices which might properly found a petition under Div 1 Nevertheless the respondent submitted that I need not form any concluded view on that question because (so it was submitted) the facts alleged in the petition if established would not entitle the petitioner to an order avoiding the election

6126 Justice Hayne then turned to the facts that were alleged by the petitioner In response to the first complaint about the lack of media coverage for the petitioner His Honour said the following

The first complaint depends upon the contention that there has been some breach of an implied freedom of communication in relation to the political and electoral processhellipThe short answer to this first complaint is that the freedom of communication implied in the Constitution is not an obligation to publicise The freedom is a freedom from government action it is not a right to require others to provide a means of communication The petitionerrsquos case depends upon him having some right to require others to disseminate his views But as was said in Lange v Australian Broadcasting Corporation

ss 7 and 24 and the related sections of the Constitution necessarily protect that freedom of communication between the people concerning political or government matters which enables the people to exercise a free and informed choice as electors Those sections do not confer personal rights on individuals Rather they preclude the curtailment of the protected freedom by the exercise of legislative or executive power As Deane J said in Theophanous they are lsquoa limitation or confinement of laws and powers [which] gives rise to a pro tanto immunity on the part of the citizen from being adversely affected by those laws or by the exercise of those powers rather than to a ldquorightrdquo in the strict sensersquo In Cunliffe v The Commonwealth Brennan J pointed out that the freedom confers no rights on individuals and to the extent that the freedom rests upon implication that implication defines the nature an extent of the freedom His Honour said

lsquoThe implication is negative in nature it invalidates laws and consequently creates an area of immunity from legal control particularly from legislative controlrsquordquo

6127 In response to the second complaint about the application of the provisions of the Act dealing with the grouping of Senate candidates Justice Hayne reviewed previous court decisions on this issue as follows

The constitutional validity of provisions like s 211 has twice been considered ndash in McKenzie v The Commonwealth and in Abbotto v Australian Electoral Commission At the time of McKenzie the Act was cast in slightly different terms and did not contain s 211A Gibbs CJ rejected a submission that the group voting system then provided for the election of Senators was contrary to s 7 or 16 of the Constitution and held that the provisions then in force did not ldquoso [offend] democratic principles as to render the sections beyond the power of the Parliament to enactrdquo In Abbotto Dawson J held that there was no substance to the contention that the voting system provided for by ss 211 and 211A contravened s 10 of the Constitution The petition in this matter did not explicitly challenge the constitutional validity of ss 211 and 211A The petitioner sought to add such a challenge by the amendments I have mentioned earlier but for the reasons I have set out that challenge is not sustainable

6128 His Honour then dismissed the petitionerrsquos arguments in relation to ticket voting for Senate elections as follows

The petitioner alleges that the provisions are ldquounfairrdquo and asserts that s 211 (and perhaps s 211A) is not a reasonably proportionate regulation of the subject matter He prays in aid of this submission that the Court is obliged by s 364 to be ldquoguided by the substantial merits and good conscience of each case without regard to legal forms or technicalitiesrdquo

Read in the context of the Act s 364 and its reference to ldquosubstantial merits and good consciencerdquo is to be understood as directing the Court about how it should set about its task of deciding the issues presented under the Act by the petition it does not give the Court some power to rewrite the Act to accord with some abstract standard of fairness If the provisions made in the Act for election of Senators are valid laws of the Parliament it is not to the point for the Court to attempt to characterise those provisions as ldquofairrdquo or ldquounfairrdquo In particular s 364 gives no warrant for the Court declaring void an election conducted in accordance with valid legislative requirements

Thus if ss 211 and 211A are valid laws of the Parliament an election conducted in accordance with these provisions (and the other applicable provisions of the Act) cannot be held to be void The asserted challenge to validity is as I have said without foundation It follows that the second of the petitionerrsquos complaints fails

6129 Finally Justice Hayne made comment on the conduct of the proceedings by the petitioner in entering appearances for 384 other persons who he claimed supported his petition

Before parting with this matter it is as well to say something of the way in which the provisions permitting the entry of appearance by persons entitled to vote at the election in question have operated in this case As I have noted earlier more than 380 appearances were filed It goes without saying that the number of persons appearing made the conduct of the proceeding more difficult and costly than it would have been if the only parties to it were the petitioner and the respondent More troubling were the suggestions in an affidavit filed on behalf of the respondent first that some of those who entered an appearance may have been misled about what they were doing (or at least may not have understood the significance of the step they were taking) and second that some persons given notice of the proceeding because notice of appearance had been given in their name denied that they knew anything at all about the matter and denied entering an appearance I have however embarked on no inquiry about these assertions and make no finding about them

6130 His Honour concluded his judgment by dismissing the petition and ordered that the petitioner pay the costs of the respondent the AEC

6131 Following the conclusion of this case the AGS referred the matter of the 384 appearances filed with the Court by Mr McClure ostensibly in support of his petition to the Australian Federal Police for investigation of a possible offence under the Crimes Act 1914

62 The Related Petitions

621 The McClure v AEC petition was identical to four other petitions filed with the High Court in Registries around the nation disputing the half-Senate elections in those States and the Senate election for the Northern Territory The five identical petitions also sought a ldquoclass actionrdquo hearing and were as follows

NT Senate Polke v AEC filed Darwin 2 December 1998 NSW Senate Vaughan v AEC filed Sydney 7 December 1998 WA Senate Garcia v AEC filed Perth 7 December 1998 Vic Senate McClure v AEC filed Melbourne 8 December 1998 Tas Senate Heathorn v AEC filed Hobart 8 December 1998

622 On the dismissal of the McClure v AEC petition by Justice Hayne on 24 June 1999 Mr Geoffrey McCarthy of AGS acting on behalf of the AEC filed summonses and affidavits on 8 July 1999 seeking orders in each of remaining four petitions that the petitions be dismissed or stayed

623 On 9 July 1999 the four petitioners all unsuccessful independent Senate candidates were served by Mr McCarthy of AGS on behalf of the AEC with similar summonses and affidavits to those filed in the McClure petition by the AEC The petitioners were further advised that should they notify Mr McCarthy before 16 July 1999 of their intention not to oppose the application by the AEC for dismissal of the petitions then the AEC would not seek costs against them

624 The petitioners Mr Garcia Mr Polke and Mr Vaughan advised Mr McCarthy on 14 July 1999 that they would not oppose the applications by the AEC for the dismissal of their petitions The fourth petitioner Mr Heathorn advised Mr McCarthy on 21 July 1999 that he would not oppose the AEC application for dismissal The petitioners also advised the Court of their intentions not to oppose the AEC application

625 On 22 July 1999 before Justice Hayne of the Court of Disputed Returns in Canberra a video-link was established with Perth Darwin Sydney and Hobart to enable the petitioners to be heard if they so wished Mr Gageler of counsel represented the AEC with Mr Geoffrey McCarthy and there was no appearance by the petitioners or by any of the other persons who had filed appearances in support of the petitioners Justice Hayne delivered the same decision in each of the petition as follows

The petition is not materially different from the petition I considered in the matter of McClure v Australian Electoral Commission (1999) 163 ALR 734 For the reasons I gave in that matter this petition cannot succeed It is dismissed The respondent does not seek costs and there is no order as to costs

7 Implications of the McClure Decision

71 Senate Group Ticket Voting

711 It is not unusual for independent Senate candidates to belatedly discover generally at the time of nomination that they are not entitled to appear on the ballot paper as a group ldquoabove the linerdquo and thereby take advantage of the ticket voting system for the Senate This may give rise to some protest at the ldquofairnessrdquo of sections 211 and 211A of the Electoral Act and can result in petitions to the Court of Disputed Returns after the election on the grounds that the law is both unconstitutional and ldquounfairrdquo to independent candidates

712 In McKenzie v The Commonwealth (1984) 59 ALJR 190 and in Abbotto v AEC (1997) 71 ALJR 675 the High Court has confirmed that the Senate group ticket voting system is not unconstitutional In McKenzie Gibbs CJ held that that the relevant provisions did not ldquoso offend democratic principles as to render the sections beyond the power of the Parliament to enactrdquo In Abbotto Dawson J held that the relevant provisions did not contravene section 10 of the Constitution McClure v AEC (1999) 73 ALJR 1086 is in accordance with these previous decisions in relation to the constitutionality of the Senate group ticket voting system

713 Further confirmation of the validity of the Senate group voting system is evidenced by the dismissal by the Federal Court of an injunction application on similar grounds by Mr Hodgetts just prior to polling day for the 1998 federal election (Hodgetts v AEC Dowsett J 2 October 1998 unreported) (see paras 1226 to 1228 of AEC submission No 88 of 12 March 1999)

714 In the McClure petition and proceedings it was also claimed that the provisions are ldquounfairrdquo to independents and that section 364 of the Electoral Act required the Court to make a finding that the election was therefore void Section 364 of the Electoral Act is entitled ldquoReal justice to be observedrdquo and provides as follows

The Court shall be guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities or whether the evidence before it is in accordance with the law of evidence or not

715 Petitioners occasionally invoke this provision in their submissions to the Court arguing that it means that elements of the rule of law should not apply to proceedings in election petitions and that the Court should take into its consideration whether or not a particular law is ldquofairrdquo or ldquounfairrdquo As noted by Gleeson CJ Gummow and Hayne JJ in Sue v Hill (1999) 73 ALJR 1016 at 1025

Provisions of this typehellipdo not exonerate the Court from the application of substantive rules of law and are consistent with and indeed require the application of the rules of procedural fairness

6110 Justice Hayne made the following orders on 29 March 1999

1 Adjourn further hearing of summons dated 10 March 1999 to 27 April at 930 am Melbourne 2 Direct that notice of the application made by that summons shall be sufficiently given by the Australian Electoral Commission giving notice to the other parties to the proceedings upon the petition of the further hearing of that summons by posting on or before 7 April 1999 by prepaid ordinary post to the address for service of each of the parties to the proceedings upon the petition (other than the petitioner and respondent) a notice substantially in the form of the schedule to this order 3 Reserve costs 4 Certify for counsel

6111 In compliance with the orders of the Court by letters on 31 March and 1 April Mr Geoffrey McCarthy of the AGS acting for the AEC wrote to each of the 384 persons who had entered an appearance advising them of the proceedings and attaching copy of the Court orders and the relevant notice

6112 From around 6 April the office of the AGS in Canberra and the Court Registry in Melbourne received an avalanche of phone calls or correspondence from these persons complaining that they knew nothing about the petition had never met Mr McClure and to their knowledge had not signed any document entering an appearance in the petition Some of them recalled signing a ldquopetitionrdquo in the street but thought it had been about other matters such as animal welfare or suburban parking restrictions Complaints were also made to the AEC directly in one instance claiming that the AEC had released a personrsquos name in contravention of the Privacy Act (which was not the case) These persons were referred by the AGS for further information either to Mr McClure the petitioner or to the Court Registry

6113 On 9 April Mr McCarthy of the AGS on behalf of the AEC wrote a further letter to these 384 persons outlining the grounds of the McClure petition explaining that it was Mr McClure who had filed their Notices of Appearance with the Court on their behalf and advising that the AEC was the respondent to the petition and had no part in them becoming involved in the matter On 26 April Mr McCarthy filed an affidavit with the Court advising the action taken in compliance with the orders of the Court

6114 On 27 April the hearing of the AEC summons to have the petition dismissed or stayed resumed before Justice Hayne in Melbourne Mr Gageler of counsel appeared for the AEC with Mr Geoffrey McCarthy and Mr McClure represented himself Only one of the 384 persons Mr McClure claimed supported his petition appeared in person Mr Cecil Murgatroyd made a short submission in support of the McClure petition towards the end of the hearing Another person Ms Kelly Buzza was represented by Mr Terry Shiels who submitted that she had not understood that the documents she had signed constituted an entry of appearance to the petition

6115 Largely as a matter of procedural fairness to Mr McClure Mr Gageler for the AEC took the Court through the various relevant provisions of the Electoral Act and summarised the arguments as to why the petition failed to comply with section 355(a) of the Act which requires the petitioner to set out the facts relied on to invalidate the election and section 355(aa) of the Act which requires the petitioner to set out those facts with sufficient particularity In reply Mr McClure did not really address the submissions of the AEC but instead gave more of a political speech about the alleged unfairness of independent Senate candidates being denied access to group ticket voting

6116 In the course of the hearings Mr McClure sought to amend his petition by alleging that sections 211 and 211A of the Electoral Act which deal with ticket voting for Senate elections are not valid laws of the Parliament because there was no proper Royal Assent to the bills by which those sections were inserted in the Act Mr McClure asserted that Australia became a sovereign and independent nation at or after the time of the Treaty of Versailles and accordingly Royal Assent to or on behalf of a person who is the sovereign of the United Kingdom was of no effect

6117 Justice Hayne gave Mr McClure several opportunities to ensure that he had addressed the Court on everything he wished to say and repeated back to Mr McClure his understanding of Mr McClurersquos submissions to ensure that there was no misunderstanding On each occasion Mr McClure agreed that the Court understood his point of view On several occasions Justice Hayne also made it clear to Mr McClure that ldquothere would be no tomorrowrdquo and that he should make sure he covered everything in support of his allegations and claims Justice Hayne then reserved his decision

6118 On 24 June 1999 Justice Hayne delivered his decision ordering that the McClure petition be dismissed and that the petitioner Mr McClure pay the costs of the respondent the AEC

6119 In his decision in McClure v AEC (1999) 73 ALJR 1086 at Attachment 5 Justice Hayne formally refused Mr McClurersquos application at the time of the hearing to amend his petition so as to allege that sections 211 and 211A of the Electoral Act were not valid laws of the Parliament His Honour concluded that the law to be applied by the courts is to be found in covering clause 5 to the Constitution and said further

In so far as the petitioner relies on some alleged deficiency in the signification of Royal Assent it is ss 58 59 and 60 of the Constitution that deal with the ways in which the Royal Assent may be given to bills passed by the other elements of the Parliament So far as is now relevant s 58 governs It provides that the Governor-General ldquoshall declare according to his discretion but subject to this Constitution that he assents in the Queenrsquos namerdquo There is nothing to suggest that that this was not done in the case of the Acts that introduced s 211 and s 211A into the Act The history of the international dealings to which the petitioner referred is not the point

It is in these circumstances not necessary to consider whether ss 355(e) and 358 of the Act preclude amendment because it is sought more than 40 days after the return of the writ The respondentrsquos reliance on those provisions assumes that they are valid The petitionerrsquos proposed amendment might appear to attempt to cast doubt on that validity But as I have indicated earlier the arguments against validity must fail and the amendments proposed would be futile

6120 In dismissing the petition Justice Hayne dealt firstly in his judgment with the petitionerrsquos claims for relief other than the actual voiding of the election The first of these claims was the ldquodeposit claimrdquo for the return of the petitionerrsquos Senate nomination deposit of $700

The petitioner seeks the return of the sum deposited by him in accordance with s 170(2) of the Act hellip He characterises this deposit as ldquoconfirmation of a contractrdquo between the petitioner and the respondent and says in effect that consideration for the contract wholly failed (or there was no meeting of minds) because the electoral process was not as he supposed it to be ndash one in which ldquono one candidate would be disadvantaged abovehellipanotherrdquo

There are at least two answers to this contention First the statutory requirement that a deposit is paid by or on behalf of the person nominated is not a requirement that leads to the formation of a contract between the respondent and the nominee or a person who pays the deposit on behalf of the nominee The Act prescribes the circumstances in which the deposit is to be forfeited and those circumstances came to pass in the petitionerrsquos case ndash the number of votes polled in his favour as first preferences was less than 4 per cent of the total number of votes polled as first preferences Questions of consideration failure of consideration or meeting of the minds simply do not arise and the claim must therefore fail

Secondly it may be very much doubted that the Court has power to order the return of a candidatersquos deposit No such power is included in the list of powers of the Court given by s 360(1) and although that list is not exhaustive the petitioner was not able to point to any basis for concluding that the Court does not have the power for which he contends This claim must fail

6121 The second of the petitionerrsquos claims for relief other than the voiding of the election was the ldquopublicity claimrdquo which Justice Hayne dealt with as follows

It is not clear what the petitioner means when he says that the Court should ldquoinformally instructrdquo the chiefs of staff of media bodies about how they should act in the future If he seeks to have the Court give some advice to these persons it is enough to say that this is not the Courtrsquos function If he seeks to have the Court make some order about future conduct there is no basis in the Act for concluding that the Court has any power to do so There being no power to do so the further questions that might then have arisen about framing an order with sufficient certainty need not be considered The relief claimed cannot be given

6122 The third of the petitionerrsquos claims for relief other than the voiding of the election was the ldquoticket votingrdquo claim which Justice Hayne dealt with as follows

For like reasons there is no basis upon which the Court might lawfully ldquoinstructrdquo the respondent about the conduct of future elections Future elections must be conducted according to law The relief claimed cannot be given

6123 The fourth of the petitionerrsquos claims for relief other than the voiding of the election was the ldquoclass actionrdquo claim which Justice Hayne dealt with as follows

The question of joining this petition to other petitions pending in the Court as some form of class action is a question that relates only to how this petition is to be dealt with it is not a question that touches the merits of the complaints that the petitioner makes It is therefore not a question that affects whether the orders sought by the respondent should now be made That being said however it is to be recalled that in Muldowney v Australian Electoral Commission Brennan ACJ held that the jurisdiction to declare an election void on the petition of a person qualified to vote at that election is a power limited to those elections in which the petitioner was entitled to vote and did not extend to power to declare the entirety of a general election void

It may be as the respondent contended that the attempt to have petitions form a class action was to try to overcome these decisions But the validity and force of the respondentrsquos contention in this regard would depend upon what was said to follow from ldquojoiningrdquo petitions as a ldquoclass actionrdquo The petitioner pointed to no provision of the Act or the High Court Rules that contemplates joining petitions as a class action and the point was not examined in any detail in the course of argument Because these are not matters that affect whether the orders sought by the respondent should be made it is not necessary to explore them further

6124 The central claim for relief by the petitioner was the claim to void the half-Senate election for the State of Victoria and declare the six Victorian Senators not duly elected Justice Hayne described the argument submitted by the AEC against the petition as follows

The principal focus of argument was on the petitionerrsquos claim that the election in question should be declared void As to that the respondent submitted that the petition should be stayed or dismissed because first it does not comply with s 355 of the Act secondly it alleges no ldquoillegal practicerdquo as that term is defined in the Act (a breach of the Act or regulations) and therefore the Court has no jurisdiction to avoid the election and thirdly it fails to raise any ground which would justify the avoidance of the election it seeks to challenge

6125 His Honour then discussed the various relevant provisions of section 355 of the Electoral Act which sets down the requirements for a petition and section 362(3) of the Act which provides for the voiding of an election for illegal practices Justice Hayne made the following comment on section 362(3)

In Webster v Deahm Gaudron J held that hellip

ldquothe very minimum assertion necessary to constitute a fact which will lsquoinvalidate [an] election or returnrsquo for the purposes of s 355(a) of the Act is one raising a matter or matters by which lsquothe election was likely to be affectedrsquordquo

No doubt it was in light of this that the respondent submitted that a petition must be dismissed if it does not set out facts which if proved would establish that there are available grounds for invalidating the election and the election was likely to be affected on those grounds

That submission proceeded from the premise that s 362(3) is an exhaustive statement of the circumstances in which the Court may declare an election void Put in that way the submission may very well be stated too broadly In Hudson v Lee Gaudron J held that s 352(1) of the Act identified exhaustively the practices which might properly found a petition under Div 1 Nevertheless the respondent submitted that I need not form any concluded view on that question because (so it was submitted) the facts alleged in the petition if established would not entitle the petitioner to an order avoiding the election

6126 Justice Hayne then turned to the facts that were alleged by the petitioner In response to the first complaint about the lack of media coverage for the petitioner His Honour said the following

The first complaint depends upon the contention that there has been some breach of an implied freedom of communication in relation to the political and electoral processhellipThe short answer to this first complaint is that the freedom of communication implied in the Constitution is not an obligation to publicise The freedom is a freedom from government action it is not a right to require others to provide a means of communication The petitionerrsquos case depends upon him having some right to require others to disseminate his views But as was said in Lange v Australian Broadcasting Corporation

ss 7 and 24 and the related sections of the Constitution necessarily protect that freedom of communication between the people concerning political or government matters which enables the people to exercise a free and informed choice as electors Those sections do not confer personal rights on individuals Rather they preclude the curtailment of the protected freedom by the exercise of legislative or executive power As Deane J said in Theophanous they are lsquoa limitation or confinement of laws and powers [which] gives rise to a pro tanto immunity on the part of the citizen from being adversely affected by those laws or by the exercise of those powers rather than to a ldquorightrdquo in the strict sensersquo In Cunliffe v The Commonwealth Brennan J pointed out that the freedom confers no rights on individuals and to the extent that the freedom rests upon implication that implication defines the nature an extent of the freedom His Honour said

lsquoThe implication is negative in nature it invalidates laws and consequently creates an area of immunity from legal control particularly from legislative controlrsquordquo

6127 In response to the second complaint about the application of the provisions of the Act dealing with the grouping of Senate candidates Justice Hayne reviewed previous court decisions on this issue as follows

The constitutional validity of provisions like s 211 has twice been considered ndash in McKenzie v The Commonwealth and in Abbotto v Australian Electoral Commission At the time of McKenzie the Act was cast in slightly different terms and did not contain s 211A Gibbs CJ rejected a submission that the group voting system then provided for the election of Senators was contrary to s 7 or 16 of the Constitution and held that the provisions then in force did not ldquoso [offend] democratic principles as to render the sections beyond the power of the Parliament to enactrdquo In Abbotto Dawson J held that there was no substance to the contention that the voting system provided for by ss 211 and 211A contravened s 10 of the Constitution The petition in this matter did not explicitly challenge the constitutional validity of ss 211 and 211A The petitioner sought to add such a challenge by the amendments I have mentioned earlier but for the reasons I have set out that challenge is not sustainable

6128 His Honour then dismissed the petitionerrsquos arguments in relation to ticket voting for Senate elections as follows

The petitioner alleges that the provisions are ldquounfairrdquo and asserts that s 211 (and perhaps s 211A) is not a reasonably proportionate regulation of the subject matter He prays in aid of this submission that the Court is obliged by s 364 to be ldquoguided by the substantial merits and good conscience of each case without regard to legal forms or technicalitiesrdquo

Read in the context of the Act s 364 and its reference to ldquosubstantial merits and good consciencerdquo is to be understood as directing the Court about how it should set about its task of deciding the issues presented under the Act by the petition it does not give the Court some power to rewrite the Act to accord with some abstract standard of fairness If the provisions made in the Act for election of Senators are valid laws of the Parliament it is not to the point for the Court to attempt to characterise those provisions as ldquofairrdquo or ldquounfairrdquo In particular s 364 gives no warrant for the Court declaring void an election conducted in accordance with valid legislative requirements

Thus if ss 211 and 211A are valid laws of the Parliament an election conducted in accordance with these provisions (and the other applicable provisions of the Act) cannot be held to be void The asserted challenge to validity is as I have said without foundation It follows that the second of the petitionerrsquos complaints fails

6129 Finally Justice Hayne made comment on the conduct of the proceedings by the petitioner in entering appearances for 384 other persons who he claimed supported his petition

Before parting with this matter it is as well to say something of the way in which the provisions permitting the entry of appearance by persons entitled to vote at the election in question have operated in this case As I have noted earlier more than 380 appearances were filed It goes without saying that the number of persons appearing made the conduct of the proceeding more difficult and costly than it would have been if the only parties to it were the petitioner and the respondent More troubling were the suggestions in an affidavit filed on behalf of the respondent first that some of those who entered an appearance may have been misled about what they were doing (or at least may not have understood the significance of the step they were taking) and second that some persons given notice of the proceeding because notice of appearance had been given in their name denied that they knew anything at all about the matter and denied entering an appearance I have however embarked on no inquiry about these assertions and make no finding about them

6130 His Honour concluded his judgment by dismissing the petition and ordered that the petitioner pay the costs of the respondent the AEC

6131 Following the conclusion of this case the AGS referred the matter of the 384 appearances filed with the Court by Mr McClure ostensibly in support of his petition to the Australian Federal Police for investigation of a possible offence under the Crimes Act 1914

62 The Related Petitions

621 The McClure v AEC petition was identical to four other petitions filed with the High Court in Registries around the nation disputing the half-Senate elections in those States and the Senate election for the Northern Territory The five identical petitions also sought a ldquoclass actionrdquo hearing and were as follows

NT Senate Polke v AEC filed Darwin 2 December 1998 NSW Senate Vaughan v AEC filed Sydney 7 December 1998 WA Senate Garcia v AEC filed Perth 7 December 1998 Vic Senate McClure v AEC filed Melbourne 8 December 1998 Tas Senate Heathorn v AEC filed Hobart 8 December 1998

622 On the dismissal of the McClure v AEC petition by Justice Hayne on 24 June 1999 Mr Geoffrey McCarthy of AGS acting on behalf of the AEC filed summonses and affidavits on 8 July 1999 seeking orders in each of remaining four petitions that the petitions be dismissed or stayed

623 On 9 July 1999 the four petitioners all unsuccessful independent Senate candidates were served by Mr McCarthy of AGS on behalf of the AEC with similar summonses and affidavits to those filed in the McClure petition by the AEC The petitioners were further advised that should they notify Mr McCarthy before 16 July 1999 of their intention not to oppose the application by the AEC for dismissal of the petitions then the AEC would not seek costs against them

624 The petitioners Mr Garcia Mr Polke and Mr Vaughan advised Mr McCarthy on 14 July 1999 that they would not oppose the applications by the AEC for the dismissal of their petitions The fourth petitioner Mr Heathorn advised Mr McCarthy on 21 July 1999 that he would not oppose the AEC application for dismissal The petitioners also advised the Court of their intentions not to oppose the AEC application

625 On 22 July 1999 before Justice Hayne of the Court of Disputed Returns in Canberra a video-link was established with Perth Darwin Sydney and Hobart to enable the petitioners to be heard if they so wished Mr Gageler of counsel represented the AEC with Mr Geoffrey McCarthy and there was no appearance by the petitioners or by any of the other persons who had filed appearances in support of the petitioners Justice Hayne delivered the same decision in each of the petition as follows

The petition is not materially different from the petition I considered in the matter of McClure v Australian Electoral Commission (1999) 163 ALR 734 For the reasons I gave in that matter this petition cannot succeed It is dismissed The respondent does not seek costs and there is no order as to costs

7 Implications of the McClure Decision

71 Senate Group Ticket Voting

711 It is not unusual for independent Senate candidates to belatedly discover generally at the time of nomination that they are not entitled to appear on the ballot paper as a group ldquoabove the linerdquo and thereby take advantage of the ticket voting system for the Senate This may give rise to some protest at the ldquofairnessrdquo of sections 211 and 211A of the Electoral Act and can result in petitions to the Court of Disputed Returns after the election on the grounds that the law is both unconstitutional and ldquounfairrdquo to independent candidates

712 In McKenzie v The Commonwealth (1984) 59 ALJR 190 and in Abbotto v AEC (1997) 71 ALJR 675 the High Court has confirmed that the Senate group ticket voting system is not unconstitutional In McKenzie Gibbs CJ held that that the relevant provisions did not ldquoso offend democratic principles as to render the sections beyond the power of the Parliament to enactrdquo In Abbotto Dawson J held that the relevant provisions did not contravene section 10 of the Constitution McClure v AEC (1999) 73 ALJR 1086 is in accordance with these previous decisions in relation to the constitutionality of the Senate group ticket voting system

713 Further confirmation of the validity of the Senate group voting system is evidenced by the dismissal by the Federal Court of an injunction application on similar grounds by Mr Hodgetts just prior to polling day for the 1998 federal election (Hodgetts v AEC Dowsett J 2 October 1998 unreported) (see paras 1226 to 1228 of AEC submission No 88 of 12 March 1999)

714 In the McClure petition and proceedings it was also claimed that the provisions are ldquounfairrdquo to independents and that section 364 of the Electoral Act required the Court to make a finding that the election was therefore void Section 364 of the Electoral Act is entitled ldquoReal justice to be observedrdquo and provides as follows

The Court shall be guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities or whether the evidence before it is in accordance with the law of evidence or not

715 Petitioners occasionally invoke this provision in their submissions to the Court arguing that it means that elements of the rule of law should not apply to proceedings in election petitions and that the Court should take into its consideration whether or not a particular law is ldquofairrdquo or ldquounfairrdquo As noted by Gleeson CJ Gummow and Hayne JJ in Sue v Hill (1999) 73 ALJR 1016 at 1025

Provisions of this typehellipdo not exonerate the Court from the application of substantive rules of law and are consistent with and indeed require the application of the rules of procedural fairness

6115 Largely as a matter of procedural fairness to Mr McClure Mr Gageler for the AEC took the Court through the various relevant provisions of the Electoral Act and summarised the arguments as to why the petition failed to comply with section 355(a) of the Act which requires the petitioner to set out the facts relied on to invalidate the election and section 355(aa) of the Act which requires the petitioner to set out those facts with sufficient particularity In reply Mr McClure did not really address the submissions of the AEC but instead gave more of a political speech about the alleged unfairness of independent Senate candidates being denied access to group ticket voting

6116 In the course of the hearings Mr McClure sought to amend his petition by alleging that sections 211 and 211A of the Electoral Act which deal with ticket voting for Senate elections are not valid laws of the Parliament because there was no proper Royal Assent to the bills by which those sections were inserted in the Act Mr McClure asserted that Australia became a sovereign and independent nation at or after the time of the Treaty of Versailles and accordingly Royal Assent to or on behalf of a person who is the sovereign of the United Kingdom was of no effect

6117 Justice Hayne gave Mr McClure several opportunities to ensure that he had addressed the Court on everything he wished to say and repeated back to Mr McClure his understanding of Mr McClurersquos submissions to ensure that there was no misunderstanding On each occasion Mr McClure agreed that the Court understood his point of view On several occasions Justice Hayne also made it clear to Mr McClure that ldquothere would be no tomorrowrdquo and that he should make sure he covered everything in support of his allegations and claims Justice Hayne then reserved his decision

6118 On 24 June 1999 Justice Hayne delivered his decision ordering that the McClure petition be dismissed and that the petitioner Mr McClure pay the costs of the respondent the AEC

6119 In his decision in McClure v AEC (1999) 73 ALJR 1086 at Attachment 5 Justice Hayne formally refused Mr McClurersquos application at the time of the hearing to amend his petition so as to allege that sections 211 and 211A of the Electoral Act were not valid laws of the Parliament His Honour concluded that the law to be applied by the courts is to be found in covering clause 5 to the Constitution and said further

In so far as the petitioner relies on some alleged deficiency in the signification of Royal Assent it is ss 58 59 and 60 of the Constitution that deal with the ways in which the Royal Assent may be given to bills passed by the other elements of the Parliament So far as is now relevant s 58 governs It provides that the Governor-General ldquoshall declare according to his discretion but subject to this Constitution that he assents in the Queenrsquos namerdquo There is nothing to suggest that that this was not done in the case of the Acts that introduced s 211 and s 211A into the Act The history of the international dealings to which the petitioner referred is not the point

It is in these circumstances not necessary to consider whether ss 355(e) and 358 of the Act preclude amendment because it is sought more than 40 days after the return of the writ The respondentrsquos reliance on those provisions assumes that they are valid The petitionerrsquos proposed amendment might appear to attempt to cast doubt on that validity But as I have indicated earlier the arguments against validity must fail and the amendments proposed would be futile

6120 In dismissing the petition Justice Hayne dealt firstly in his judgment with the petitionerrsquos claims for relief other than the actual voiding of the election The first of these claims was the ldquodeposit claimrdquo for the return of the petitionerrsquos Senate nomination deposit of $700

The petitioner seeks the return of the sum deposited by him in accordance with s 170(2) of the Act hellip He characterises this deposit as ldquoconfirmation of a contractrdquo between the petitioner and the respondent and says in effect that consideration for the contract wholly failed (or there was no meeting of minds) because the electoral process was not as he supposed it to be ndash one in which ldquono one candidate would be disadvantaged abovehellipanotherrdquo

There are at least two answers to this contention First the statutory requirement that a deposit is paid by or on behalf of the person nominated is not a requirement that leads to the formation of a contract between the respondent and the nominee or a person who pays the deposit on behalf of the nominee The Act prescribes the circumstances in which the deposit is to be forfeited and those circumstances came to pass in the petitionerrsquos case ndash the number of votes polled in his favour as first preferences was less than 4 per cent of the total number of votes polled as first preferences Questions of consideration failure of consideration or meeting of the minds simply do not arise and the claim must therefore fail

Secondly it may be very much doubted that the Court has power to order the return of a candidatersquos deposit No such power is included in the list of powers of the Court given by s 360(1) and although that list is not exhaustive the petitioner was not able to point to any basis for concluding that the Court does not have the power for which he contends This claim must fail

6121 The second of the petitionerrsquos claims for relief other than the voiding of the election was the ldquopublicity claimrdquo which Justice Hayne dealt with as follows

It is not clear what the petitioner means when he says that the Court should ldquoinformally instructrdquo the chiefs of staff of media bodies about how they should act in the future If he seeks to have the Court give some advice to these persons it is enough to say that this is not the Courtrsquos function If he seeks to have the Court make some order about future conduct there is no basis in the Act for concluding that the Court has any power to do so There being no power to do so the further questions that might then have arisen about framing an order with sufficient certainty need not be considered The relief claimed cannot be given

6122 The third of the petitionerrsquos claims for relief other than the voiding of the election was the ldquoticket votingrdquo claim which Justice Hayne dealt with as follows

For like reasons there is no basis upon which the Court might lawfully ldquoinstructrdquo the respondent about the conduct of future elections Future elections must be conducted according to law The relief claimed cannot be given

6123 The fourth of the petitionerrsquos claims for relief other than the voiding of the election was the ldquoclass actionrdquo claim which Justice Hayne dealt with as follows

The question of joining this petition to other petitions pending in the Court as some form of class action is a question that relates only to how this petition is to be dealt with it is not a question that touches the merits of the complaints that the petitioner makes It is therefore not a question that affects whether the orders sought by the respondent should now be made That being said however it is to be recalled that in Muldowney v Australian Electoral Commission Brennan ACJ held that the jurisdiction to declare an election void on the petition of a person qualified to vote at that election is a power limited to those elections in which the petitioner was entitled to vote and did not extend to power to declare the entirety of a general election void

It may be as the respondent contended that the attempt to have petitions form a class action was to try to overcome these decisions But the validity and force of the respondentrsquos contention in this regard would depend upon what was said to follow from ldquojoiningrdquo petitions as a ldquoclass actionrdquo The petitioner pointed to no provision of the Act or the High Court Rules that contemplates joining petitions as a class action and the point was not examined in any detail in the course of argument Because these are not matters that affect whether the orders sought by the respondent should be made it is not necessary to explore them further

6124 The central claim for relief by the petitioner was the claim to void the half-Senate election for the State of Victoria and declare the six Victorian Senators not duly elected Justice Hayne described the argument submitted by the AEC against the petition as follows

The principal focus of argument was on the petitionerrsquos claim that the election in question should be declared void As to that the respondent submitted that the petition should be stayed or dismissed because first it does not comply with s 355 of the Act secondly it alleges no ldquoillegal practicerdquo as that term is defined in the Act (a breach of the Act or regulations) and therefore the Court has no jurisdiction to avoid the election and thirdly it fails to raise any ground which would justify the avoidance of the election it seeks to challenge

6125 His Honour then discussed the various relevant provisions of section 355 of the Electoral Act which sets down the requirements for a petition and section 362(3) of the Act which provides for the voiding of an election for illegal practices Justice Hayne made the following comment on section 362(3)

In Webster v Deahm Gaudron J held that hellip

ldquothe very minimum assertion necessary to constitute a fact which will lsquoinvalidate [an] election or returnrsquo for the purposes of s 355(a) of the Act is one raising a matter or matters by which lsquothe election was likely to be affectedrsquordquo

No doubt it was in light of this that the respondent submitted that a petition must be dismissed if it does not set out facts which if proved would establish that there are available grounds for invalidating the election and the election was likely to be affected on those grounds

That submission proceeded from the premise that s 362(3) is an exhaustive statement of the circumstances in which the Court may declare an election void Put in that way the submission may very well be stated too broadly In Hudson v Lee Gaudron J held that s 352(1) of the Act identified exhaustively the practices which might properly found a petition under Div 1 Nevertheless the respondent submitted that I need not form any concluded view on that question because (so it was submitted) the facts alleged in the petition if established would not entitle the petitioner to an order avoiding the election

6126 Justice Hayne then turned to the facts that were alleged by the petitioner In response to the first complaint about the lack of media coverage for the petitioner His Honour said the following

The first complaint depends upon the contention that there has been some breach of an implied freedom of communication in relation to the political and electoral processhellipThe short answer to this first complaint is that the freedom of communication implied in the Constitution is not an obligation to publicise The freedom is a freedom from government action it is not a right to require others to provide a means of communication The petitionerrsquos case depends upon him having some right to require others to disseminate his views But as was said in Lange v Australian Broadcasting Corporation

ss 7 and 24 and the related sections of the Constitution necessarily protect that freedom of communication between the people concerning political or government matters which enables the people to exercise a free and informed choice as electors Those sections do not confer personal rights on individuals Rather they preclude the curtailment of the protected freedom by the exercise of legislative or executive power As Deane J said in Theophanous they are lsquoa limitation or confinement of laws and powers [which] gives rise to a pro tanto immunity on the part of the citizen from being adversely affected by those laws or by the exercise of those powers rather than to a ldquorightrdquo in the strict sensersquo In Cunliffe v The Commonwealth Brennan J pointed out that the freedom confers no rights on individuals and to the extent that the freedom rests upon implication that implication defines the nature an extent of the freedom His Honour said

lsquoThe implication is negative in nature it invalidates laws and consequently creates an area of immunity from legal control particularly from legislative controlrsquordquo

6127 In response to the second complaint about the application of the provisions of the Act dealing with the grouping of Senate candidates Justice Hayne reviewed previous court decisions on this issue as follows

The constitutional validity of provisions like s 211 has twice been considered ndash in McKenzie v The Commonwealth and in Abbotto v Australian Electoral Commission At the time of McKenzie the Act was cast in slightly different terms and did not contain s 211A Gibbs CJ rejected a submission that the group voting system then provided for the election of Senators was contrary to s 7 or 16 of the Constitution and held that the provisions then in force did not ldquoso [offend] democratic principles as to render the sections beyond the power of the Parliament to enactrdquo In Abbotto Dawson J held that there was no substance to the contention that the voting system provided for by ss 211 and 211A contravened s 10 of the Constitution The petition in this matter did not explicitly challenge the constitutional validity of ss 211 and 211A The petitioner sought to add such a challenge by the amendments I have mentioned earlier but for the reasons I have set out that challenge is not sustainable

6128 His Honour then dismissed the petitionerrsquos arguments in relation to ticket voting for Senate elections as follows

The petitioner alleges that the provisions are ldquounfairrdquo and asserts that s 211 (and perhaps s 211A) is not a reasonably proportionate regulation of the subject matter He prays in aid of this submission that the Court is obliged by s 364 to be ldquoguided by the substantial merits and good conscience of each case without regard to legal forms or technicalitiesrdquo

Read in the context of the Act s 364 and its reference to ldquosubstantial merits and good consciencerdquo is to be understood as directing the Court about how it should set about its task of deciding the issues presented under the Act by the petition it does not give the Court some power to rewrite the Act to accord with some abstract standard of fairness If the provisions made in the Act for election of Senators are valid laws of the Parliament it is not to the point for the Court to attempt to characterise those provisions as ldquofairrdquo or ldquounfairrdquo In particular s 364 gives no warrant for the Court declaring void an election conducted in accordance with valid legislative requirements

Thus if ss 211 and 211A are valid laws of the Parliament an election conducted in accordance with these provisions (and the other applicable provisions of the Act) cannot be held to be void The asserted challenge to validity is as I have said without foundation It follows that the second of the petitionerrsquos complaints fails

6129 Finally Justice Hayne made comment on the conduct of the proceedings by the petitioner in entering appearances for 384 other persons who he claimed supported his petition

Before parting with this matter it is as well to say something of the way in which the provisions permitting the entry of appearance by persons entitled to vote at the election in question have operated in this case As I have noted earlier more than 380 appearances were filed It goes without saying that the number of persons appearing made the conduct of the proceeding more difficult and costly than it would have been if the only parties to it were the petitioner and the respondent More troubling were the suggestions in an affidavit filed on behalf of the respondent first that some of those who entered an appearance may have been misled about what they were doing (or at least may not have understood the significance of the step they were taking) and second that some persons given notice of the proceeding because notice of appearance had been given in their name denied that they knew anything at all about the matter and denied entering an appearance I have however embarked on no inquiry about these assertions and make no finding about them

6130 His Honour concluded his judgment by dismissing the petition and ordered that the petitioner pay the costs of the respondent the AEC

6131 Following the conclusion of this case the AGS referred the matter of the 384 appearances filed with the Court by Mr McClure ostensibly in support of his petition to the Australian Federal Police for investigation of a possible offence under the Crimes Act 1914

62 The Related Petitions

621 The McClure v AEC petition was identical to four other petitions filed with the High Court in Registries around the nation disputing the half-Senate elections in those States and the Senate election for the Northern Territory The five identical petitions also sought a ldquoclass actionrdquo hearing and were as follows

NT Senate Polke v AEC filed Darwin 2 December 1998 NSW Senate Vaughan v AEC filed Sydney 7 December 1998 WA Senate Garcia v AEC filed Perth 7 December 1998 Vic Senate McClure v AEC filed Melbourne 8 December 1998 Tas Senate Heathorn v AEC filed Hobart 8 December 1998

622 On the dismissal of the McClure v AEC petition by Justice Hayne on 24 June 1999 Mr Geoffrey McCarthy of AGS acting on behalf of the AEC filed summonses and affidavits on 8 July 1999 seeking orders in each of remaining four petitions that the petitions be dismissed or stayed

623 On 9 July 1999 the four petitioners all unsuccessful independent Senate candidates were served by Mr McCarthy of AGS on behalf of the AEC with similar summonses and affidavits to those filed in the McClure petition by the AEC The petitioners were further advised that should they notify Mr McCarthy before 16 July 1999 of their intention not to oppose the application by the AEC for dismissal of the petitions then the AEC would not seek costs against them

624 The petitioners Mr Garcia Mr Polke and Mr Vaughan advised Mr McCarthy on 14 July 1999 that they would not oppose the applications by the AEC for the dismissal of their petitions The fourth petitioner Mr Heathorn advised Mr McCarthy on 21 July 1999 that he would not oppose the AEC application for dismissal The petitioners also advised the Court of their intentions not to oppose the AEC application

625 On 22 July 1999 before Justice Hayne of the Court of Disputed Returns in Canberra a video-link was established with Perth Darwin Sydney and Hobart to enable the petitioners to be heard if they so wished Mr Gageler of counsel represented the AEC with Mr Geoffrey McCarthy and there was no appearance by the petitioners or by any of the other persons who had filed appearances in support of the petitioners Justice Hayne delivered the same decision in each of the petition as follows

The petition is not materially different from the petition I considered in the matter of McClure v Australian Electoral Commission (1999) 163 ALR 734 For the reasons I gave in that matter this petition cannot succeed It is dismissed The respondent does not seek costs and there is no order as to costs

7 Implications of the McClure Decision

71 Senate Group Ticket Voting

711 It is not unusual for independent Senate candidates to belatedly discover generally at the time of nomination that they are not entitled to appear on the ballot paper as a group ldquoabove the linerdquo and thereby take advantage of the ticket voting system for the Senate This may give rise to some protest at the ldquofairnessrdquo of sections 211 and 211A of the Electoral Act and can result in petitions to the Court of Disputed Returns after the election on the grounds that the law is both unconstitutional and ldquounfairrdquo to independent candidates

712 In McKenzie v The Commonwealth (1984) 59 ALJR 190 and in Abbotto v AEC (1997) 71 ALJR 675 the High Court has confirmed that the Senate group ticket voting system is not unconstitutional In McKenzie Gibbs CJ held that that the relevant provisions did not ldquoso offend democratic principles as to render the sections beyond the power of the Parliament to enactrdquo In Abbotto Dawson J held that the relevant provisions did not contravene section 10 of the Constitution McClure v AEC (1999) 73 ALJR 1086 is in accordance with these previous decisions in relation to the constitutionality of the Senate group ticket voting system

713 Further confirmation of the validity of the Senate group voting system is evidenced by the dismissal by the Federal Court of an injunction application on similar grounds by Mr Hodgetts just prior to polling day for the 1998 federal election (Hodgetts v AEC Dowsett J 2 October 1998 unreported) (see paras 1226 to 1228 of AEC submission No 88 of 12 March 1999)

714 In the McClure petition and proceedings it was also claimed that the provisions are ldquounfairrdquo to independents and that section 364 of the Electoral Act required the Court to make a finding that the election was therefore void Section 364 of the Electoral Act is entitled ldquoReal justice to be observedrdquo and provides as follows

The Court shall be guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities or whether the evidence before it is in accordance with the law of evidence or not

715 Petitioners occasionally invoke this provision in their submissions to the Court arguing that it means that elements of the rule of law should not apply to proceedings in election petitions and that the Court should take into its consideration whether or not a particular law is ldquofairrdquo or ldquounfairrdquo As noted by Gleeson CJ Gummow and Hayne JJ in Sue v Hill (1999) 73 ALJR 1016 at 1025

Provisions of this typehellipdo not exonerate the Court from the application of substantive rules of law and are consistent with and indeed require the application of the rules of procedural fairness

It is in these circumstances not necessary to consider whether ss 355(e) and 358 of the Act preclude amendment because it is sought more than 40 days after the return of the writ The respondentrsquos reliance on those provisions assumes that they are valid The petitionerrsquos proposed amendment might appear to attempt to cast doubt on that validity But as I have indicated earlier the arguments against validity must fail and the amendments proposed would be futile

6120 In dismissing the petition Justice Hayne dealt firstly in his judgment with the petitionerrsquos claims for relief other than the actual voiding of the election The first of these claims was the ldquodeposit claimrdquo for the return of the petitionerrsquos Senate nomination deposit of $700

The petitioner seeks the return of the sum deposited by him in accordance with s 170(2) of the Act hellip He characterises this deposit as ldquoconfirmation of a contractrdquo between the petitioner and the respondent and says in effect that consideration for the contract wholly failed (or there was no meeting of minds) because the electoral process was not as he supposed it to be ndash one in which ldquono one candidate would be disadvantaged abovehellipanotherrdquo

There are at least two answers to this contention First the statutory requirement that a deposit is paid by or on behalf of the person nominated is not a requirement that leads to the formation of a contract between the respondent and the nominee or a person who pays the deposit on behalf of the nominee The Act prescribes the circumstances in which the deposit is to be forfeited and those circumstances came to pass in the petitionerrsquos case ndash the number of votes polled in his favour as first preferences was less than 4 per cent of the total number of votes polled as first preferences Questions of consideration failure of consideration or meeting of the minds simply do not arise and the claim must therefore fail

Secondly it may be very much doubted that the Court has power to order the return of a candidatersquos deposit No such power is included in the list of powers of the Court given by s 360(1) and although that list is not exhaustive the petitioner was not able to point to any basis for concluding that the Court does not have the power for which he contends This claim must fail

6121 The second of the petitionerrsquos claims for relief other than the voiding of the election was the ldquopublicity claimrdquo which Justice Hayne dealt with as follows

It is not clear what the petitioner means when he says that the Court should ldquoinformally instructrdquo the chiefs of staff of media bodies about how they should act in the future If he seeks to have the Court give some advice to these persons it is enough to say that this is not the Courtrsquos function If he seeks to have the Court make some order about future conduct there is no basis in the Act for concluding that the Court has any power to do so There being no power to do so the further questions that might then have arisen about framing an order with sufficient certainty need not be considered The relief claimed cannot be given

6122 The third of the petitionerrsquos claims for relief other than the voiding of the election was the ldquoticket votingrdquo claim which Justice Hayne dealt with as follows

For like reasons there is no basis upon which the Court might lawfully ldquoinstructrdquo the respondent about the conduct of future elections Future elections must be conducted according to law The relief claimed cannot be given

6123 The fourth of the petitionerrsquos claims for relief other than the voiding of the election was the ldquoclass actionrdquo claim which Justice Hayne dealt with as follows

The question of joining this petition to other petitions pending in the Court as some form of class action is a question that relates only to how this petition is to be dealt with it is not a question that touches the merits of the complaints that the petitioner makes It is therefore not a question that affects whether the orders sought by the respondent should now be made That being said however it is to be recalled that in Muldowney v Australian Electoral Commission Brennan ACJ held that the jurisdiction to declare an election void on the petition of a person qualified to vote at that election is a power limited to those elections in which the petitioner was entitled to vote and did not extend to power to declare the entirety of a general election void

It may be as the respondent contended that the attempt to have petitions form a class action was to try to overcome these decisions But the validity and force of the respondentrsquos contention in this regard would depend upon what was said to follow from ldquojoiningrdquo petitions as a ldquoclass actionrdquo The petitioner pointed to no provision of the Act or the High Court Rules that contemplates joining petitions as a class action and the point was not examined in any detail in the course of argument Because these are not matters that affect whether the orders sought by the respondent should be made it is not necessary to explore them further

6124 The central claim for relief by the petitioner was the claim to void the half-Senate election for the State of Victoria and declare the six Victorian Senators not duly elected Justice Hayne described the argument submitted by the AEC against the petition as follows

The principal focus of argument was on the petitionerrsquos claim that the election in question should be declared void As to that the respondent submitted that the petition should be stayed or dismissed because first it does not comply with s 355 of the Act secondly it alleges no ldquoillegal practicerdquo as that term is defined in the Act (a breach of the Act or regulations) and therefore the Court has no jurisdiction to avoid the election and thirdly it fails to raise any ground which would justify the avoidance of the election it seeks to challenge

6125 His Honour then discussed the various relevant provisions of section 355 of the Electoral Act which sets down the requirements for a petition and section 362(3) of the Act which provides for the voiding of an election for illegal practices Justice Hayne made the following comment on section 362(3)

In Webster v Deahm Gaudron J held that hellip

ldquothe very minimum assertion necessary to constitute a fact which will lsquoinvalidate [an] election or returnrsquo for the purposes of s 355(a) of the Act is one raising a matter or matters by which lsquothe election was likely to be affectedrsquordquo

No doubt it was in light of this that the respondent submitted that a petition must be dismissed if it does not set out facts which if proved would establish that there are available grounds for invalidating the election and the election was likely to be affected on those grounds

That submission proceeded from the premise that s 362(3) is an exhaustive statement of the circumstances in which the Court may declare an election void Put in that way the submission may very well be stated too broadly In Hudson v Lee Gaudron J held that s 352(1) of the Act identified exhaustively the practices which might properly found a petition under Div 1 Nevertheless the respondent submitted that I need not form any concluded view on that question because (so it was submitted) the facts alleged in the petition if established would not entitle the petitioner to an order avoiding the election

6126 Justice Hayne then turned to the facts that were alleged by the petitioner In response to the first complaint about the lack of media coverage for the petitioner His Honour said the following

The first complaint depends upon the contention that there has been some breach of an implied freedom of communication in relation to the political and electoral processhellipThe short answer to this first complaint is that the freedom of communication implied in the Constitution is not an obligation to publicise The freedom is a freedom from government action it is not a right to require others to provide a means of communication The petitionerrsquos case depends upon him having some right to require others to disseminate his views But as was said in Lange v Australian Broadcasting Corporation

ss 7 and 24 and the related sections of the Constitution necessarily protect that freedom of communication between the people concerning political or government matters which enables the people to exercise a free and informed choice as electors Those sections do not confer personal rights on individuals Rather they preclude the curtailment of the protected freedom by the exercise of legislative or executive power As Deane J said in Theophanous they are lsquoa limitation or confinement of laws and powers [which] gives rise to a pro tanto immunity on the part of the citizen from being adversely affected by those laws or by the exercise of those powers rather than to a ldquorightrdquo in the strict sensersquo In Cunliffe v The Commonwealth Brennan J pointed out that the freedom confers no rights on individuals and to the extent that the freedom rests upon implication that implication defines the nature an extent of the freedom His Honour said

lsquoThe implication is negative in nature it invalidates laws and consequently creates an area of immunity from legal control particularly from legislative controlrsquordquo

6127 In response to the second complaint about the application of the provisions of the Act dealing with the grouping of Senate candidates Justice Hayne reviewed previous court decisions on this issue as follows

The constitutional validity of provisions like s 211 has twice been considered ndash in McKenzie v The Commonwealth and in Abbotto v Australian Electoral Commission At the time of McKenzie the Act was cast in slightly different terms and did not contain s 211A Gibbs CJ rejected a submission that the group voting system then provided for the election of Senators was contrary to s 7 or 16 of the Constitution and held that the provisions then in force did not ldquoso [offend] democratic principles as to render the sections beyond the power of the Parliament to enactrdquo In Abbotto Dawson J held that there was no substance to the contention that the voting system provided for by ss 211 and 211A contravened s 10 of the Constitution The petition in this matter did not explicitly challenge the constitutional validity of ss 211 and 211A The petitioner sought to add such a challenge by the amendments I have mentioned earlier but for the reasons I have set out that challenge is not sustainable

6128 His Honour then dismissed the petitionerrsquos arguments in relation to ticket voting for Senate elections as follows

The petitioner alleges that the provisions are ldquounfairrdquo and asserts that s 211 (and perhaps s 211A) is not a reasonably proportionate regulation of the subject matter He prays in aid of this submission that the Court is obliged by s 364 to be ldquoguided by the substantial merits and good conscience of each case without regard to legal forms or technicalitiesrdquo

Read in the context of the Act s 364 and its reference to ldquosubstantial merits and good consciencerdquo is to be understood as directing the Court about how it should set about its task of deciding the issues presented under the Act by the petition it does not give the Court some power to rewrite the Act to accord with some abstract standard of fairness If the provisions made in the Act for election of Senators are valid laws of the Parliament it is not to the point for the Court to attempt to characterise those provisions as ldquofairrdquo or ldquounfairrdquo In particular s 364 gives no warrant for the Court declaring void an election conducted in accordance with valid legislative requirements

Thus if ss 211 and 211A are valid laws of the Parliament an election conducted in accordance with these provisions (and the other applicable provisions of the Act) cannot be held to be void The asserted challenge to validity is as I have said without foundation It follows that the second of the petitionerrsquos complaints fails

6129 Finally Justice Hayne made comment on the conduct of the proceedings by the petitioner in entering appearances for 384 other persons who he claimed supported his petition

Before parting with this matter it is as well to say something of the way in which the provisions permitting the entry of appearance by persons entitled to vote at the election in question have operated in this case As I have noted earlier more than 380 appearances were filed It goes without saying that the number of persons appearing made the conduct of the proceeding more difficult and costly than it would have been if the only parties to it were the petitioner and the respondent More troubling were the suggestions in an affidavit filed on behalf of the respondent first that some of those who entered an appearance may have been misled about what they were doing (or at least may not have understood the significance of the step they were taking) and second that some persons given notice of the proceeding because notice of appearance had been given in their name denied that they knew anything at all about the matter and denied entering an appearance I have however embarked on no inquiry about these assertions and make no finding about them

6130 His Honour concluded his judgment by dismissing the petition and ordered that the petitioner pay the costs of the respondent the AEC

6131 Following the conclusion of this case the AGS referred the matter of the 384 appearances filed with the Court by Mr McClure ostensibly in support of his petition to the Australian Federal Police for investigation of a possible offence under the Crimes Act 1914

62 The Related Petitions

621 The McClure v AEC petition was identical to four other petitions filed with the High Court in Registries around the nation disputing the half-Senate elections in those States and the Senate election for the Northern Territory The five identical petitions also sought a ldquoclass actionrdquo hearing and were as follows

NT Senate Polke v AEC filed Darwin 2 December 1998 NSW Senate Vaughan v AEC filed Sydney 7 December 1998 WA Senate Garcia v AEC filed Perth 7 December 1998 Vic Senate McClure v AEC filed Melbourne 8 December 1998 Tas Senate Heathorn v AEC filed Hobart 8 December 1998

622 On the dismissal of the McClure v AEC petition by Justice Hayne on 24 June 1999 Mr Geoffrey McCarthy of AGS acting on behalf of the AEC filed summonses and affidavits on 8 July 1999 seeking orders in each of remaining four petitions that the petitions be dismissed or stayed

623 On 9 July 1999 the four petitioners all unsuccessful independent Senate candidates were served by Mr McCarthy of AGS on behalf of the AEC with similar summonses and affidavits to those filed in the McClure petition by the AEC The petitioners were further advised that should they notify Mr McCarthy before 16 July 1999 of their intention not to oppose the application by the AEC for dismissal of the petitions then the AEC would not seek costs against them

624 The petitioners Mr Garcia Mr Polke and Mr Vaughan advised Mr McCarthy on 14 July 1999 that they would not oppose the applications by the AEC for the dismissal of their petitions The fourth petitioner Mr Heathorn advised Mr McCarthy on 21 July 1999 that he would not oppose the AEC application for dismissal The petitioners also advised the Court of their intentions not to oppose the AEC application

625 On 22 July 1999 before Justice Hayne of the Court of Disputed Returns in Canberra a video-link was established with Perth Darwin Sydney and Hobart to enable the petitioners to be heard if they so wished Mr Gageler of counsel represented the AEC with Mr Geoffrey McCarthy and there was no appearance by the petitioners or by any of the other persons who had filed appearances in support of the petitioners Justice Hayne delivered the same decision in each of the petition as follows

The petition is not materially different from the petition I considered in the matter of McClure v Australian Electoral Commission (1999) 163 ALR 734 For the reasons I gave in that matter this petition cannot succeed It is dismissed The respondent does not seek costs and there is no order as to costs

7 Implications of the McClure Decision

71 Senate Group Ticket Voting

711 It is not unusual for independent Senate candidates to belatedly discover generally at the time of nomination that they are not entitled to appear on the ballot paper as a group ldquoabove the linerdquo and thereby take advantage of the ticket voting system for the Senate This may give rise to some protest at the ldquofairnessrdquo of sections 211 and 211A of the Electoral Act and can result in petitions to the Court of Disputed Returns after the election on the grounds that the law is both unconstitutional and ldquounfairrdquo to independent candidates

712 In McKenzie v The Commonwealth (1984) 59 ALJR 190 and in Abbotto v AEC (1997) 71 ALJR 675 the High Court has confirmed that the Senate group ticket voting system is not unconstitutional In McKenzie Gibbs CJ held that that the relevant provisions did not ldquoso offend democratic principles as to render the sections beyond the power of the Parliament to enactrdquo In Abbotto Dawson J held that the relevant provisions did not contravene section 10 of the Constitution McClure v AEC (1999) 73 ALJR 1086 is in accordance with these previous decisions in relation to the constitutionality of the Senate group ticket voting system

713 Further confirmation of the validity of the Senate group voting system is evidenced by the dismissal by the Federal Court of an injunction application on similar grounds by Mr Hodgetts just prior to polling day for the 1998 federal election (Hodgetts v AEC Dowsett J 2 October 1998 unreported) (see paras 1226 to 1228 of AEC submission No 88 of 12 March 1999)

714 In the McClure petition and proceedings it was also claimed that the provisions are ldquounfairrdquo to independents and that section 364 of the Electoral Act required the Court to make a finding that the election was therefore void Section 364 of the Electoral Act is entitled ldquoReal justice to be observedrdquo and provides as follows

The Court shall be guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities or whether the evidence before it is in accordance with the law of evidence or not

715 Petitioners occasionally invoke this provision in their submissions to the Court arguing that it means that elements of the rule of law should not apply to proceedings in election petitions and that the Court should take into its consideration whether or not a particular law is ldquofairrdquo or ldquounfairrdquo As noted by Gleeson CJ Gummow and Hayne JJ in Sue v Hill (1999) 73 ALJR 1016 at 1025

Provisions of this typehellipdo not exonerate the Court from the application of substantive rules of law and are consistent with and indeed require the application of the rules of procedural fairness

6122 The third of the petitionerrsquos claims for relief other than the voiding of the election was the ldquoticket votingrdquo claim which Justice Hayne dealt with as follows

For like reasons there is no basis upon which the Court might lawfully ldquoinstructrdquo the respondent about the conduct of future elections Future elections must be conducted according to law The relief claimed cannot be given

6123 The fourth of the petitionerrsquos claims for relief other than the voiding of the election was the ldquoclass actionrdquo claim which Justice Hayne dealt with as follows

The question of joining this petition to other petitions pending in the Court as some form of class action is a question that relates only to how this petition is to be dealt with it is not a question that touches the merits of the complaints that the petitioner makes It is therefore not a question that affects whether the orders sought by the respondent should now be made That being said however it is to be recalled that in Muldowney v Australian Electoral Commission Brennan ACJ held that the jurisdiction to declare an election void on the petition of a person qualified to vote at that election is a power limited to those elections in which the petitioner was entitled to vote and did not extend to power to declare the entirety of a general election void

It may be as the respondent contended that the attempt to have petitions form a class action was to try to overcome these decisions But the validity and force of the respondentrsquos contention in this regard would depend upon what was said to follow from ldquojoiningrdquo petitions as a ldquoclass actionrdquo The petitioner pointed to no provision of the Act or the High Court Rules that contemplates joining petitions as a class action and the point was not examined in any detail in the course of argument Because these are not matters that affect whether the orders sought by the respondent should be made it is not necessary to explore them further

6124 The central claim for relief by the petitioner was the claim to void the half-Senate election for the State of Victoria and declare the six Victorian Senators not duly elected Justice Hayne described the argument submitted by the AEC against the petition as follows

The principal focus of argument was on the petitionerrsquos claim that the election in question should be declared void As to that the respondent submitted that the petition should be stayed or dismissed because first it does not comply with s 355 of the Act secondly it alleges no ldquoillegal practicerdquo as that term is defined in the Act (a breach of the Act or regulations) and therefore the Court has no jurisdiction to avoid the election and thirdly it fails to raise any ground which would justify the avoidance of the election it seeks to challenge

6125 His Honour then discussed the various relevant provisions of section 355 of the Electoral Act which sets down the requirements for a petition and section 362(3) of the Act which provides for the voiding of an election for illegal practices Justice Hayne made the following comment on section 362(3)

In Webster v Deahm Gaudron J held that hellip

ldquothe very minimum assertion necessary to constitute a fact which will lsquoinvalidate [an] election or returnrsquo for the purposes of s 355(a) of the Act is one raising a matter or matters by which lsquothe election was likely to be affectedrsquordquo

No doubt it was in light of this that the respondent submitted that a petition must be dismissed if it does not set out facts which if proved would establish that there are available grounds for invalidating the election and the election was likely to be affected on those grounds

That submission proceeded from the premise that s 362(3) is an exhaustive statement of the circumstances in which the Court may declare an election void Put in that way the submission may very well be stated too broadly In Hudson v Lee Gaudron J held that s 352(1) of the Act identified exhaustively the practices which might properly found a petition under Div 1 Nevertheless the respondent submitted that I need not form any concluded view on that question because (so it was submitted) the facts alleged in the petition if established would not entitle the petitioner to an order avoiding the election

6126 Justice Hayne then turned to the facts that were alleged by the petitioner In response to the first complaint about the lack of media coverage for the petitioner His Honour said the following

The first complaint depends upon the contention that there has been some breach of an implied freedom of communication in relation to the political and electoral processhellipThe short answer to this first complaint is that the freedom of communication implied in the Constitution is not an obligation to publicise The freedom is a freedom from government action it is not a right to require others to provide a means of communication The petitionerrsquos case depends upon him having some right to require others to disseminate his views But as was said in Lange v Australian Broadcasting Corporation

ss 7 and 24 and the related sections of the Constitution necessarily protect that freedom of communication between the people concerning political or government matters which enables the people to exercise a free and informed choice as electors Those sections do not confer personal rights on individuals Rather they preclude the curtailment of the protected freedom by the exercise of legislative or executive power As Deane J said in Theophanous they are lsquoa limitation or confinement of laws and powers [which] gives rise to a pro tanto immunity on the part of the citizen from being adversely affected by those laws or by the exercise of those powers rather than to a ldquorightrdquo in the strict sensersquo In Cunliffe v The Commonwealth Brennan J pointed out that the freedom confers no rights on individuals and to the extent that the freedom rests upon implication that implication defines the nature an extent of the freedom His Honour said

lsquoThe implication is negative in nature it invalidates laws and consequently creates an area of immunity from legal control particularly from legislative controlrsquordquo

6127 In response to the second complaint about the application of the provisions of the Act dealing with the grouping of Senate candidates Justice Hayne reviewed previous court decisions on this issue as follows

The constitutional validity of provisions like s 211 has twice been considered ndash in McKenzie v The Commonwealth and in Abbotto v Australian Electoral Commission At the time of McKenzie the Act was cast in slightly different terms and did not contain s 211A Gibbs CJ rejected a submission that the group voting system then provided for the election of Senators was contrary to s 7 or 16 of the Constitution and held that the provisions then in force did not ldquoso [offend] democratic principles as to render the sections beyond the power of the Parliament to enactrdquo In Abbotto Dawson J held that there was no substance to the contention that the voting system provided for by ss 211 and 211A contravened s 10 of the Constitution The petition in this matter did not explicitly challenge the constitutional validity of ss 211 and 211A The petitioner sought to add such a challenge by the amendments I have mentioned earlier but for the reasons I have set out that challenge is not sustainable

6128 His Honour then dismissed the petitionerrsquos arguments in relation to ticket voting for Senate elections as follows

The petitioner alleges that the provisions are ldquounfairrdquo and asserts that s 211 (and perhaps s 211A) is not a reasonably proportionate regulation of the subject matter He prays in aid of this submission that the Court is obliged by s 364 to be ldquoguided by the substantial merits and good conscience of each case without regard to legal forms or technicalitiesrdquo

Read in the context of the Act s 364 and its reference to ldquosubstantial merits and good consciencerdquo is to be understood as directing the Court about how it should set about its task of deciding the issues presented under the Act by the petition it does not give the Court some power to rewrite the Act to accord with some abstract standard of fairness If the provisions made in the Act for election of Senators are valid laws of the Parliament it is not to the point for the Court to attempt to characterise those provisions as ldquofairrdquo or ldquounfairrdquo In particular s 364 gives no warrant for the Court declaring void an election conducted in accordance with valid legislative requirements

Thus if ss 211 and 211A are valid laws of the Parliament an election conducted in accordance with these provisions (and the other applicable provisions of the Act) cannot be held to be void The asserted challenge to validity is as I have said without foundation It follows that the second of the petitionerrsquos complaints fails

6129 Finally Justice Hayne made comment on the conduct of the proceedings by the petitioner in entering appearances for 384 other persons who he claimed supported his petition

Before parting with this matter it is as well to say something of the way in which the provisions permitting the entry of appearance by persons entitled to vote at the election in question have operated in this case As I have noted earlier more than 380 appearances were filed It goes without saying that the number of persons appearing made the conduct of the proceeding more difficult and costly than it would have been if the only parties to it were the petitioner and the respondent More troubling were the suggestions in an affidavit filed on behalf of the respondent first that some of those who entered an appearance may have been misled about what they were doing (or at least may not have understood the significance of the step they were taking) and second that some persons given notice of the proceeding because notice of appearance had been given in their name denied that they knew anything at all about the matter and denied entering an appearance I have however embarked on no inquiry about these assertions and make no finding about them

6130 His Honour concluded his judgment by dismissing the petition and ordered that the petitioner pay the costs of the respondent the AEC

6131 Following the conclusion of this case the AGS referred the matter of the 384 appearances filed with the Court by Mr McClure ostensibly in support of his petition to the Australian Federal Police for investigation of a possible offence under the Crimes Act 1914

62 The Related Petitions

621 The McClure v AEC petition was identical to four other petitions filed with the High Court in Registries around the nation disputing the half-Senate elections in those States and the Senate election for the Northern Territory The five identical petitions also sought a ldquoclass actionrdquo hearing and were as follows

NT Senate Polke v AEC filed Darwin 2 December 1998 NSW Senate Vaughan v AEC filed Sydney 7 December 1998 WA Senate Garcia v AEC filed Perth 7 December 1998 Vic Senate McClure v AEC filed Melbourne 8 December 1998 Tas Senate Heathorn v AEC filed Hobart 8 December 1998

622 On the dismissal of the McClure v AEC petition by Justice Hayne on 24 June 1999 Mr Geoffrey McCarthy of AGS acting on behalf of the AEC filed summonses and affidavits on 8 July 1999 seeking orders in each of remaining four petitions that the petitions be dismissed or stayed

623 On 9 July 1999 the four petitioners all unsuccessful independent Senate candidates were served by Mr McCarthy of AGS on behalf of the AEC with similar summonses and affidavits to those filed in the McClure petition by the AEC The petitioners were further advised that should they notify Mr McCarthy before 16 July 1999 of their intention not to oppose the application by the AEC for dismissal of the petitions then the AEC would not seek costs against them

624 The petitioners Mr Garcia Mr Polke and Mr Vaughan advised Mr McCarthy on 14 July 1999 that they would not oppose the applications by the AEC for the dismissal of their petitions The fourth petitioner Mr Heathorn advised Mr McCarthy on 21 July 1999 that he would not oppose the AEC application for dismissal The petitioners also advised the Court of their intentions not to oppose the AEC application

625 On 22 July 1999 before Justice Hayne of the Court of Disputed Returns in Canberra a video-link was established with Perth Darwin Sydney and Hobart to enable the petitioners to be heard if they so wished Mr Gageler of counsel represented the AEC with Mr Geoffrey McCarthy and there was no appearance by the petitioners or by any of the other persons who had filed appearances in support of the petitioners Justice Hayne delivered the same decision in each of the petition as follows

The petition is not materially different from the petition I considered in the matter of McClure v Australian Electoral Commission (1999) 163 ALR 734 For the reasons I gave in that matter this petition cannot succeed It is dismissed The respondent does not seek costs and there is no order as to costs

7 Implications of the McClure Decision

71 Senate Group Ticket Voting

711 It is not unusual for independent Senate candidates to belatedly discover generally at the time of nomination that they are not entitled to appear on the ballot paper as a group ldquoabove the linerdquo and thereby take advantage of the ticket voting system for the Senate This may give rise to some protest at the ldquofairnessrdquo of sections 211 and 211A of the Electoral Act and can result in petitions to the Court of Disputed Returns after the election on the grounds that the law is both unconstitutional and ldquounfairrdquo to independent candidates

712 In McKenzie v The Commonwealth (1984) 59 ALJR 190 and in Abbotto v AEC (1997) 71 ALJR 675 the High Court has confirmed that the Senate group ticket voting system is not unconstitutional In McKenzie Gibbs CJ held that that the relevant provisions did not ldquoso offend democratic principles as to render the sections beyond the power of the Parliament to enactrdquo In Abbotto Dawson J held that the relevant provisions did not contravene section 10 of the Constitution McClure v AEC (1999) 73 ALJR 1086 is in accordance with these previous decisions in relation to the constitutionality of the Senate group ticket voting system

713 Further confirmation of the validity of the Senate group voting system is evidenced by the dismissal by the Federal Court of an injunction application on similar grounds by Mr Hodgetts just prior to polling day for the 1998 federal election (Hodgetts v AEC Dowsett J 2 October 1998 unreported) (see paras 1226 to 1228 of AEC submission No 88 of 12 March 1999)

714 In the McClure petition and proceedings it was also claimed that the provisions are ldquounfairrdquo to independents and that section 364 of the Electoral Act required the Court to make a finding that the election was therefore void Section 364 of the Electoral Act is entitled ldquoReal justice to be observedrdquo and provides as follows

The Court shall be guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities or whether the evidence before it is in accordance with the law of evidence or not

715 Petitioners occasionally invoke this provision in their submissions to the Court arguing that it means that elements of the rule of law should not apply to proceedings in election petitions and that the Court should take into its consideration whether or not a particular law is ldquofairrdquo or ldquounfairrdquo As noted by Gleeson CJ Gummow and Hayne JJ in Sue v Hill (1999) 73 ALJR 1016 at 1025

Provisions of this typehellipdo not exonerate the Court from the application of substantive rules of law and are consistent with and indeed require the application of the rules of procedural fairness

In Webster v Deahm Gaudron J held that hellip

ldquothe very minimum assertion necessary to constitute a fact which will lsquoinvalidate [an] election or returnrsquo for the purposes of s 355(a) of the Act is one raising a matter or matters by which lsquothe election was likely to be affectedrsquordquo

No doubt it was in light of this that the respondent submitted that a petition must be dismissed if it does not set out facts which if proved would establish that there are available grounds for invalidating the election and the election was likely to be affected on those grounds

That submission proceeded from the premise that s 362(3) is an exhaustive statement of the circumstances in which the Court may declare an election void Put in that way the submission may very well be stated too broadly In Hudson v Lee Gaudron J held that s 352(1) of the Act identified exhaustively the practices which might properly found a petition under Div 1 Nevertheless the respondent submitted that I need not form any concluded view on that question because (so it was submitted) the facts alleged in the petition if established would not entitle the petitioner to an order avoiding the election

6126 Justice Hayne then turned to the facts that were alleged by the petitioner In response to the first complaint about the lack of media coverage for the petitioner His Honour said the following

The first complaint depends upon the contention that there has been some breach of an implied freedom of communication in relation to the political and electoral processhellipThe short answer to this first complaint is that the freedom of communication implied in the Constitution is not an obligation to publicise The freedom is a freedom from government action it is not a right to require others to provide a means of communication The petitionerrsquos case depends upon him having some right to require others to disseminate his views But as was said in Lange v Australian Broadcasting Corporation

ss 7 and 24 and the related sections of the Constitution necessarily protect that freedom of communication between the people concerning political or government matters which enables the people to exercise a free and informed choice as electors Those sections do not confer personal rights on individuals Rather they preclude the curtailment of the protected freedom by the exercise of legislative or executive power As Deane J said in Theophanous they are lsquoa limitation or confinement of laws and powers [which] gives rise to a pro tanto immunity on the part of the citizen from being adversely affected by those laws or by the exercise of those powers rather than to a ldquorightrdquo in the strict sensersquo In Cunliffe v The Commonwealth Brennan J pointed out that the freedom confers no rights on individuals and to the extent that the freedom rests upon implication that implication defines the nature an extent of the freedom His Honour said

lsquoThe implication is negative in nature it invalidates laws and consequently creates an area of immunity from legal control particularly from legislative controlrsquordquo

6127 In response to the second complaint about the application of the provisions of the Act dealing with the grouping of Senate candidates Justice Hayne reviewed previous court decisions on this issue as follows

The constitutional validity of provisions like s 211 has twice been considered ndash in McKenzie v The Commonwealth and in Abbotto v Australian Electoral Commission At the time of McKenzie the Act was cast in slightly different terms and did not contain s 211A Gibbs CJ rejected a submission that the group voting system then provided for the election of Senators was contrary to s 7 or 16 of the Constitution and held that the provisions then in force did not ldquoso [offend] democratic principles as to render the sections beyond the power of the Parliament to enactrdquo In Abbotto Dawson J held that there was no substance to the contention that the voting system provided for by ss 211 and 211A contravened s 10 of the Constitution The petition in this matter did not explicitly challenge the constitutional validity of ss 211 and 211A The petitioner sought to add such a challenge by the amendments I have mentioned earlier but for the reasons I have set out that challenge is not sustainable

6128 His Honour then dismissed the petitionerrsquos arguments in relation to ticket voting for Senate elections as follows

The petitioner alleges that the provisions are ldquounfairrdquo and asserts that s 211 (and perhaps s 211A) is not a reasonably proportionate regulation of the subject matter He prays in aid of this submission that the Court is obliged by s 364 to be ldquoguided by the substantial merits and good conscience of each case without regard to legal forms or technicalitiesrdquo

Read in the context of the Act s 364 and its reference to ldquosubstantial merits and good consciencerdquo is to be understood as directing the Court about how it should set about its task of deciding the issues presented under the Act by the petition it does not give the Court some power to rewrite the Act to accord with some abstract standard of fairness If the provisions made in the Act for election of Senators are valid laws of the Parliament it is not to the point for the Court to attempt to characterise those provisions as ldquofairrdquo or ldquounfairrdquo In particular s 364 gives no warrant for the Court declaring void an election conducted in accordance with valid legislative requirements

Thus if ss 211 and 211A are valid laws of the Parliament an election conducted in accordance with these provisions (and the other applicable provisions of the Act) cannot be held to be void The asserted challenge to validity is as I have said without foundation It follows that the second of the petitionerrsquos complaints fails

6129 Finally Justice Hayne made comment on the conduct of the proceedings by the petitioner in entering appearances for 384 other persons who he claimed supported his petition

Before parting with this matter it is as well to say something of the way in which the provisions permitting the entry of appearance by persons entitled to vote at the election in question have operated in this case As I have noted earlier more than 380 appearances were filed It goes without saying that the number of persons appearing made the conduct of the proceeding more difficult and costly than it would have been if the only parties to it were the petitioner and the respondent More troubling were the suggestions in an affidavit filed on behalf of the respondent first that some of those who entered an appearance may have been misled about what they were doing (or at least may not have understood the significance of the step they were taking) and second that some persons given notice of the proceeding because notice of appearance had been given in their name denied that they knew anything at all about the matter and denied entering an appearance I have however embarked on no inquiry about these assertions and make no finding about them

6130 His Honour concluded his judgment by dismissing the petition and ordered that the petitioner pay the costs of the respondent the AEC

6131 Following the conclusion of this case the AGS referred the matter of the 384 appearances filed with the Court by Mr McClure ostensibly in support of his petition to the Australian Federal Police for investigation of a possible offence under the Crimes Act 1914

62 The Related Petitions

621 The McClure v AEC petition was identical to four other petitions filed with the High Court in Registries around the nation disputing the half-Senate elections in those States and the Senate election for the Northern Territory The five identical petitions also sought a ldquoclass actionrdquo hearing and were as follows

NT Senate Polke v AEC filed Darwin 2 December 1998 NSW Senate Vaughan v AEC filed Sydney 7 December 1998 WA Senate Garcia v AEC filed Perth 7 December 1998 Vic Senate McClure v AEC filed Melbourne 8 December 1998 Tas Senate Heathorn v AEC filed Hobart 8 December 1998

622 On the dismissal of the McClure v AEC petition by Justice Hayne on 24 June 1999 Mr Geoffrey McCarthy of AGS acting on behalf of the AEC filed summonses and affidavits on 8 July 1999 seeking orders in each of remaining four petitions that the petitions be dismissed or stayed

623 On 9 July 1999 the four petitioners all unsuccessful independent Senate candidates were served by Mr McCarthy of AGS on behalf of the AEC with similar summonses and affidavits to those filed in the McClure petition by the AEC The petitioners were further advised that should they notify Mr McCarthy before 16 July 1999 of their intention not to oppose the application by the AEC for dismissal of the petitions then the AEC would not seek costs against them

624 The petitioners Mr Garcia Mr Polke and Mr Vaughan advised Mr McCarthy on 14 July 1999 that they would not oppose the applications by the AEC for the dismissal of their petitions The fourth petitioner Mr Heathorn advised Mr McCarthy on 21 July 1999 that he would not oppose the AEC application for dismissal The petitioners also advised the Court of their intentions not to oppose the AEC application

625 On 22 July 1999 before Justice Hayne of the Court of Disputed Returns in Canberra a video-link was established with Perth Darwin Sydney and Hobart to enable the petitioners to be heard if they so wished Mr Gageler of counsel represented the AEC with Mr Geoffrey McCarthy and there was no appearance by the petitioners or by any of the other persons who had filed appearances in support of the petitioners Justice Hayne delivered the same decision in each of the petition as follows

The petition is not materially different from the petition I considered in the matter of McClure v Australian Electoral Commission (1999) 163 ALR 734 For the reasons I gave in that matter this petition cannot succeed It is dismissed The respondent does not seek costs and there is no order as to costs

7 Implications of the McClure Decision

71 Senate Group Ticket Voting

711 It is not unusual for independent Senate candidates to belatedly discover generally at the time of nomination that they are not entitled to appear on the ballot paper as a group ldquoabove the linerdquo and thereby take advantage of the ticket voting system for the Senate This may give rise to some protest at the ldquofairnessrdquo of sections 211 and 211A of the Electoral Act and can result in petitions to the Court of Disputed Returns after the election on the grounds that the law is both unconstitutional and ldquounfairrdquo to independent candidates

712 In McKenzie v The Commonwealth (1984) 59 ALJR 190 and in Abbotto v AEC (1997) 71 ALJR 675 the High Court has confirmed that the Senate group ticket voting system is not unconstitutional In McKenzie Gibbs CJ held that that the relevant provisions did not ldquoso offend democratic principles as to render the sections beyond the power of the Parliament to enactrdquo In Abbotto Dawson J held that the relevant provisions did not contravene section 10 of the Constitution McClure v AEC (1999) 73 ALJR 1086 is in accordance with these previous decisions in relation to the constitutionality of the Senate group ticket voting system

713 Further confirmation of the validity of the Senate group voting system is evidenced by the dismissal by the Federal Court of an injunction application on similar grounds by Mr Hodgetts just prior to polling day for the 1998 federal election (Hodgetts v AEC Dowsett J 2 October 1998 unreported) (see paras 1226 to 1228 of AEC submission No 88 of 12 March 1999)

714 In the McClure petition and proceedings it was also claimed that the provisions are ldquounfairrdquo to independents and that section 364 of the Electoral Act required the Court to make a finding that the election was therefore void Section 364 of the Electoral Act is entitled ldquoReal justice to be observedrdquo and provides as follows

The Court shall be guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities or whether the evidence before it is in accordance with the law of evidence or not

715 Petitioners occasionally invoke this provision in their submissions to the Court arguing that it means that elements of the rule of law should not apply to proceedings in election petitions and that the Court should take into its consideration whether or not a particular law is ldquofairrdquo or ldquounfairrdquo As noted by Gleeson CJ Gummow and Hayne JJ in Sue v Hill (1999) 73 ALJR 1016 at 1025

Provisions of this typehellipdo not exonerate the Court from the application of substantive rules of law and are consistent with and indeed require the application of the rules of procedural fairness

6127 In response to the second complaint about the application of the provisions of the Act dealing with the grouping of Senate candidates Justice Hayne reviewed previous court decisions on this issue as follows

The constitutional validity of provisions like s 211 has twice been considered ndash in McKenzie v The Commonwealth and in Abbotto v Australian Electoral Commission At the time of McKenzie the Act was cast in slightly different terms and did not contain s 211A Gibbs CJ rejected a submission that the group voting system then provided for the election of Senators was contrary to s 7 or 16 of the Constitution and held that the provisions then in force did not ldquoso [offend] democratic principles as to render the sections beyond the power of the Parliament to enactrdquo In Abbotto Dawson J held that there was no substance to the contention that the voting system provided for by ss 211 and 211A contravened s 10 of the Constitution The petition in this matter did not explicitly challenge the constitutional validity of ss 211 and 211A The petitioner sought to add such a challenge by the amendments I have mentioned earlier but for the reasons I have set out that challenge is not sustainable

6128 His Honour then dismissed the petitionerrsquos arguments in relation to ticket voting for Senate elections as follows

The petitioner alleges that the provisions are ldquounfairrdquo and asserts that s 211 (and perhaps s 211A) is not a reasonably proportionate regulation of the subject matter He prays in aid of this submission that the Court is obliged by s 364 to be ldquoguided by the substantial merits and good conscience of each case without regard to legal forms or technicalitiesrdquo

Read in the context of the Act s 364 and its reference to ldquosubstantial merits and good consciencerdquo is to be understood as directing the Court about how it should set about its task of deciding the issues presented under the Act by the petition it does not give the Court some power to rewrite the Act to accord with some abstract standard of fairness If the provisions made in the Act for election of Senators are valid laws of the Parliament it is not to the point for the Court to attempt to characterise those provisions as ldquofairrdquo or ldquounfairrdquo In particular s 364 gives no warrant for the Court declaring void an election conducted in accordance with valid legislative requirements

Thus if ss 211 and 211A are valid laws of the Parliament an election conducted in accordance with these provisions (and the other applicable provisions of the Act) cannot be held to be void The asserted challenge to validity is as I have said without foundation It follows that the second of the petitionerrsquos complaints fails

6129 Finally Justice Hayne made comment on the conduct of the proceedings by the petitioner in entering appearances for 384 other persons who he claimed supported his petition

Before parting with this matter it is as well to say something of the way in which the provisions permitting the entry of appearance by persons entitled to vote at the election in question have operated in this case As I have noted earlier more than 380 appearances were filed It goes without saying that the number of persons appearing made the conduct of the proceeding more difficult and costly than it would have been if the only parties to it were the petitioner and the respondent More troubling were the suggestions in an affidavit filed on behalf of the respondent first that some of those who entered an appearance may have been misled about what they were doing (or at least may not have understood the significance of the step they were taking) and second that some persons given notice of the proceeding because notice of appearance had been given in their name denied that they knew anything at all about the matter and denied entering an appearance I have however embarked on no inquiry about these assertions and make no finding about them

6130 His Honour concluded his judgment by dismissing the petition and ordered that the petitioner pay the costs of the respondent the AEC

6131 Following the conclusion of this case the AGS referred the matter of the 384 appearances filed with the Court by Mr McClure ostensibly in support of his petition to the Australian Federal Police for investigation of a possible offence under the Crimes Act 1914

62 The Related Petitions

621 The McClure v AEC petition was identical to four other petitions filed with the High Court in Registries around the nation disputing the half-Senate elections in those States and the Senate election for the Northern Territory The five identical petitions also sought a ldquoclass actionrdquo hearing and were as follows

NT Senate Polke v AEC filed Darwin 2 December 1998 NSW Senate Vaughan v AEC filed Sydney 7 December 1998 WA Senate Garcia v AEC filed Perth 7 December 1998 Vic Senate McClure v AEC filed Melbourne 8 December 1998 Tas Senate Heathorn v AEC filed Hobart 8 December 1998

622 On the dismissal of the McClure v AEC petition by Justice Hayne on 24 June 1999 Mr Geoffrey McCarthy of AGS acting on behalf of the AEC filed summonses and affidavits on 8 July 1999 seeking orders in each of remaining four petitions that the petitions be dismissed or stayed

623 On 9 July 1999 the four petitioners all unsuccessful independent Senate candidates were served by Mr McCarthy of AGS on behalf of the AEC with similar summonses and affidavits to those filed in the McClure petition by the AEC The petitioners were further advised that should they notify Mr McCarthy before 16 July 1999 of their intention not to oppose the application by the AEC for dismissal of the petitions then the AEC would not seek costs against them

624 The petitioners Mr Garcia Mr Polke and Mr Vaughan advised Mr McCarthy on 14 July 1999 that they would not oppose the applications by the AEC for the dismissal of their petitions The fourth petitioner Mr Heathorn advised Mr McCarthy on 21 July 1999 that he would not oppose the AEC application for dismissal The petitioners also advised the Court of their intentions not to oppose the AEC application

625 On 22 July 1999 before Justice Hayne of the Court of Disputed Returns in Canberra a video-link was established with Perth Darwin Sydney and Hobart to enable the petitioners to be heard if they so wished Mr Gageler of counsel represented the AEC with Mr Geoffrey McCarthy and there was no appearance by the petitioners or by any of the other persons who had filed appearances in support of the petitioners Justice Hayne delivered the same decision in each of the petition as follows

The petition is not materially different from the petition I considered in the matter of McClure v Australian Electoral Commission (1999) 163 ALR 734 For the reasons I gave in that matter this petition cannot succeed It is dismissed The respondent does not seek costs and there is no order as to costs

7 Implications of the McClure Decision

71 Senate Group Ticket Voting

711 It is not unusual for independent Senate candidates to belatedly discover generally at the time of nomination that they are not entitled to appear on the ballot paper as a group ldquoabove the linerdquo and thereby take advantage of the ticket voting system for the Senate This may give rise to some protest at the ldquofairnessrdquo of sections 211 and 211A of the Electoral Act and can result in petitions to the Court of Disputed Returns after the election on the grounds that the law is both unconstitutional and ldquounfairrdquo to independent candidates

712 In McKenzie v The Commonwealth (1984) 59 ALJR 190 and in Abbotto v AEC (1997) 71 ALJR 675 the High Court has confirmed that the Senate group ticket voting system is not unconstitutional In McKenzie Gibbs CJ held that that the relevant provisions did not ldquoso offend democratic principles as to render the sections beyond the power of the Parliament to enactrdquo In Abbotto Dawson J held that the relevant provisions did not contravene section 10 of the Constitution McClure v AEC (1999) 73 ALJR 1086 is in accordance with these previous decisions in relation to the constitutionality of the Senate group ticket voting system

713 Further confirmation of the validity of the Senate group voting system is evidenced by the dismissal by the Federal Court of an injunction application on similar grounds by Mr Hodgetts just prior to polling day for the 1998 federal election (Hodgetts v AEC Dowsett J 2 October 1998 unreported) (see paras 1226 to 1228 of AEC submission No 88 of 12 March 1999)

714 In the McClure petition and proceedings it was also claimed that the provisions are ldquounfairrdquo to independents and that section 364 of the Electoral Act required the Court to make a finding that the election was therefore void Section 364 of the Electoral Act is entitled ldquoReal justice to be observedrdquo and provides as follows

The Court shall be guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities or whether the evidence before it is in accordance with the law of evidence or not

715 Petitioners occasionally invoke this provision in their submissions to the Court arguing that it means that elements of the rule of law should not apply to proceedings in election petitions and that the Court should take into its consideration whether or not a particular law is ldquofairrdquo or ldquounfairrdquo As noted by Gleeson CJ Gummow and Hayne JJ in Sue v Hill (1999) 73 ALJR 1016 at 1025

Provisions of this typehellipdo not exonerate the Court from the application of substantive rules of law and are consistent with and indeed require the application of the rules of procedural fairness

Before parting with this matter it is as well to say something of the way in which the provisions permitting the entry of appearance by persons entitled to vote at the election in question have operated in this case As I have noted earlier more than 380 appearances were filed It goes without saying that the number of persons appearing made the conduct of the proceeding more difficult and costly than it would have been if the only parties to it were the petitioner and the respondent More troubling were the suggestions in an affidavit filed on behalf of the respondent first that some of those who entered an appearance may have been misled about what they were doing (or at least may not have understood the significance of the step they were taking) and second that some persons given notice of the proceeding because notice of appearance had been given in their name denied that they knew anything at all about the matter and denied entering an appearance I have however embarked on no inquiry about these assertions and make no finding about them

6130 His Honour concluded his judgment by dismissing the petition and ordered that the petitioner pay the costs of the respondent the AEC

6131 Following the conclusion of this case the AGS referred the matter of the 384 appearances filed with the Court by Mr McClure ostensibly in support of his petition to the Australian Federal Police for investigation of a possible offence under the Crimes Act 1914

62 The Related Petitions

621 The McClure v AEC petition was identical to four other petitions filed with the High Court in Registries around the nation disputing the half-Senate elections in those States and the Senate election for the Northern Territory The five identical petitions also sought a ldquoclass actionrdquo hearing and were as follows

NT Senate Polke v AEC filed Darwin 2 December 1998 NSW Senate Vaughan v AEC filed Sydney 7 December 1998 WA Senate Garcia v AEC filed Perth 7 December 1998 Vic Senate McClure v AEC filed Melbourne 8 December 1998 Tas Senate Heathorn v AEC filed Hobart 8 December 1998

622 On the dismissal of the McClure v AEC petition by Justice Hayne on 24 June 1999 Mr Geoffrey McCarthy of AGS acting on behalf of the AEC filed summonses and affidavits on 8 July 1999 seeking orders in each of remaining four petitions that the petitions be dismissed or stayed

623 On 9 July 1999 the four petitioners all unsuccessful independent Senate candidates were served by Mr McCarthy of AGS on behalf of the AEC with similar summonses and affidavits to those filed in the McClure petition by the AEC The petitioners were further advised that should they notify Mr McCarthy before 16 July 1999 of their intention not to oppose the application by the AEC for dismissal of the petitions then the AEC would not seek costs against them

624 The petitioners Mr Garcia Mr Polke and Mr Vaughan advised Mr McCarthy on 14 July 1999 that they would not oppose the applications by the AEC for the dismissal of their petitions The fourth petitioner Mr Heathorn advised Mr McCarthy on 21 July 1999 that he would not oppose the AEC application for dismissal The petitioners also advised the Court of their intentions not to oppose the AEC application

625 On 22 July 1999 before Justice Hayne of the Court of Disputed Returns in Canberra a video-link was established with Perth Darwin Sydney and Hobart to enable the petitioners to be heard if they so wished Mr Gageler of counsel represented the AEC with Mr Geoffrey McCarthy and there was no appearance by the petitioners or by any of the other persons who had filed appearances in support of the petitioners Justice Hayne delivered the same decision in each of the petition as follows

The petition is not materially different from the petition I considered in the matter of McClure v Australian Electoral Commission (1999) 163 ALR 734 For the reasons I gave in that matter this petition cannot succeed It is dismissed The respondent does not seek costs and there is no order as to costs

7 Implications of the McClure Decision

71 Senate Group Ticket Voting

711 It is not unusual for independent Senate candidates to belatedly discover generally at the time of nomination that they are not entitled to appear on the ballot paper as a group ldquoabove the linerdquo and thereby take advantage of the ticket voting system for the Senate This may give rise to some protest at the ldquofairnessrdquo of sections 211 and 211A of the Electoral Act and can result in petitions to the Court of Disputed Returns after the election on the grounds that the law is both unconstitutional and ldquounfairrdquo to independent candidates

712 In McKenzie v The Commonwealth (1984) 59 ALJR 190 and in Abbotto v AEC (1997) 71 ALJR 675 the High Court has confirmed that the Senate group ticket voting system is not unconstitutional In McKenzie Gibbs CJ held that that the relevant provisions did not ldquoso offend democratic principles as to render the sections beyond the power of the Parliament to enactrdquo In Abbotto Dawson J held that the relevant provisions did not contravene section 10 of the Constitution McClure v AEC (1999) 73 ALJR 1086 is in accordance with these previous decisions in relation to the constitutionality of the Senate group ticket voting system

713 Further confirmation of the validity of the Senate group voting system is evidenced by the dismissal by the Federal Court of an injunction application on similar grounds by Mr Hodgetts just prior to polling day for the 1998 federal election (Hodgetts v AEC Dowsett J 2 October 1998 unreported) (see paras 1226 to 1228 of AEC submission No 88 of 12 March 1999)

714 In the McClure petition and proceedings it was also claimed that the provisions are ldquounfairrdquo to independents and that section 364 of the Electoral Act required the Court to make a finding that the election was therefore void Section 364 of the Electoral Act is entitled ldquoReal justice to be observedrdquo and provides as follows

The Court shall be guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities or whether the evidence before it is in accordance with the law of evidence or not

715 Petitioners occasionally invoke this provision in their submissions to the Court arguing that it means that elements of the rule of law should not apply to proceedings in election petitions and that the Court should take into its consideration whether or not a particular law is ldquofairrdquo or ldquounfairrdquo As noted by Gleeson CJ Gummow and Hayne JJ in Sue v Hill (1999) 73 ALJR 1016 at 1025

Provisions of this typehellipdo not exonerate the Court from the application of substantive rules of law and are consistent with and indeed require the application of the rules of procedural fairness

624 The petitioners Mr Garcia Mr Polke and Mr Vaughan advised Mr McCarthy on 14 July 1999 that they would not oppose the applications by the AEC for the dismissal of their petitions The fourth petitioner Mr Heathorn advised Mr McCarthy on 21 July 1999 that he would not oppose the AEC application for dismissal The petitioners also advised the Court of their intentions not to oppose the AEC application

625 On 22 July 1999 before Justice Hayne of the Court of Disputed Returns in Canberra a video-link was established with Perth Darwin Sydney and Hobart to enable the petitioners to be heard if they so wished Mr Gageler of counsel represented the AEC with Mr Geoffrey McCarthy and there was no appearance by the petitioners or by any of the other persons who had filed appearances in support of the petitioners Justice Hayne delivered the same decision in each of the petition as follows

The petition is not materially different from the petition I considered in the matter of McClure v Australian Electoral Commission (1999) 163 ALR 734 For the reasons I gave in that matter this petition cannot succeed It is dismissed The respondent does not seek costs and there is no order as to costs

7 Implications of the McClure Decision

71 Senate Group Ticket Voting

711 It is not unusual for independent Senate candidates to belatedly discover generally at the time of nomination that they are not entitled to appear on the ballot paper as a group ldquoabove the linerdquo and thereby take advantage of the ticket voting system for the Senate This may give rise to some protest at the ldquofairnessrdquo of sections 211 and 211A of the Electoral Act and can result in petitions to the Court of Disputed Returns after the election on the grounds that the law is both unconstitutional and ldquounfairrdquo to independent candidates

712 In McKenzie v The Commonwealth (1984) 59 ALJR 190 and in Abbotto v AEC (1997) 71 ALJR 675 the High Court has confirmed that the Senate group ticket voting system is not unconstitutional In McKenzie Gibbs CJ held that that the relevant provisions did not ldquoso offend democratic principles as to render the sections beyond the power of the Parliament to enactrdquo In Abbotto Dawson J held that the relevant provisions did not contravene section 10 of the Constitution McClure v AEC (1999) 73 ALJR 1086 is in accordance with these previous decisions in relation to the constitutionality of the Senate group ticket voting system

713 Further confirmation of the validity of the Senate group voting system is evidenced by the dismissal by the Federal Court of an injunction application on similar grounds by Mr Hodgetts just prior to polling day for the 1998 federal election (Hodgetts v AEC Dowsett J 2 October 1998 unreported) (see paras 1226 to 1228 of AEC submission No 88 of 12 March 1999)

714 In the McClure petition and proceedings it was also claimed that the provisions are ldquounfairrdquo to independents and that section 364 of the Electoral Act required the Court to make a finding that the election was therefore void Section 364 of the Electoral Act is entitled ldquoReal justice to be observedrdquo and provides as follows

The Court shall be guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities or whether the evidence before it is in accordance with the law of evidence or not

715 Petitioners occasionally invoke this provision in their submissions to the Court arguing that it means that elements of the rule of law should not apply to proceedings in election petitions and that the Court should take into its consideration whether or not a particular law is ldquofairrdquo or ldquounfairrdquo As noted by Gleeson CJ Gummow and Hayne JJ in Sue v Hill (1999) 73 ALJR 1016 at 1025

Provisions of this typehellipdo not exonerate the Court from the application of substantive rules of law and are consistent with and indeed require the application of the rules of procedural fairness

7 Implications of the McClure Decision

71 Senate Group Ticket Voting

711 It is not unusual for independent Senate candidates to belatedly discover generally at the time of nomination that they are not entitled to appear on the ballot paper as a group ldquoabove the linerdquo and thereby take advantage of the ticket voting system for the Senate This may give rise to some protest at the ldquofairnessrdquo of sections 211 and 211A of the Electoral Act and can result in petitions to the Court of Disputed Returns after the election on the grounds that the law is both unconstitutional and ldquounfairrdquo to independent candidates

712 In McKenzie v The Commonwealth (1984) 59 ALJR 190 and in Abbotto v AEC (1997) 71 ALJR 675 the High Court has confirmed that the Senate group ticket voting system is not unconstitutional In McKenzie Gibbs CJ held that that the relevant provisions did not ldquoso offend democratic principles as to render the sections beyond the power of the Parliament to enactrdquo In Abbotto Dawson J held that the relevant provisions did not contravene section 10 of the Constitution McClure v AEC (1999) 73 ALJR 1086 is in accordance with these previous decisions in relation to the constitutionality of the Senate group ticket voting system

713 Further confirmation of the validity of the Senate group voting system is evidenced by the dismissal by the Federal Court of an injunction application on similar grounds by Mr Hodgetts just prior to polling day for the 1998 federal election (Hodgetts v AEC Dowsett J 2 October 1998 unreported) (see paras 1226 to 1228 of AEC submission No 88 of 12 March 1999)

714 In the McClure petition and proceedings it was also claimed that the provisions are ldquounfairrdquo to independents and that section 364 of the Electoral Act required the Court to make a finding that the election was therefore void Section 364 of the Electoral Act is entitled ldquoReal justice to be observedrdquo and provides as follows

The Court shall be guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities or whether the evidence before it is in accordance with the law of evidence or not

715 Petitioners occasionally invoke this provision in their submissions to the Court arguing that it means that elements of the rule of law should not apply to proceedings in election petitions and that the Court should take into its consideration whether or not a particular law is ldquofairrdquo or ldquounfairrdquo As noted by Gleeson CJ Gummow and Hayne JJ in Sue v Hill (1999) 73 ALJR 1016 at 1025

Provisions of this typehellipdo not exonerate the Court from the application of substantive rules of law and are consistent with and indeed require the application of the rules of procedural fairness

716 In his decision in McClure v AEC Justice Hayne elaborated on the proper interpretation of section 364

hellips 364 is to be understood as directing the Court about how it should set about its task of deciding the issues presented under the Act by the petition it does not give the Court some power to rewrite the Act to accord with some abstract notion of fairness If the provisions made in the Act for election of Senators are valid laws of the Parliament it is not to the point for the Court to attempt to characterise those provisions as ldquofairrdquo or ldquounfairrdquo

In particular s 364 gives no warrant for the Court declaring void an election conducted in accordance with valid legislative requirements

717 That is section 364 of the Electoral Act does not allow the Court to make its decisions on petitions on the basis of what might or might not be considered ldquofairrdquo in relation to the conduct of elections Petitioners cannot avoid the application of the rule of law by the Court by invoking section 364

72 Freedom of Political Communication

721 Justice Hayne held that there had been no breach of the implied freedom of political communication in the Constitution as alleged by Mr McClure in his petition in relation to the lack of press coverage of his election campaign As His Honour stated in short

hellipthe freedom of communication implied in the Constitution is not an obligation to publicise The freedom is a freedom from government action it is not a right to require others to provide a means of communication

73 Class Actions in Petitions

731 Mr McClure and the other four petitioners sought leave from the Court for their petitions to be heard ldquoas a class action before the Full Bench of the High Courtrdquo Justice Hayne noted in his decision that there is no provision in the Electoral Act or the High Court Rules which would enable class actions in election petitions

732 In declining to hear the petitions as a class action Justice Hayne applied the decision in Muldowney v AEC (1993) 178 CLR 34 that petitioners can only dispute elections at which they were entitled to vote (effectively a Senate election for any one of the six States or two Territories and an election for any one of the 148 House of Representatives Divisions) That is petitioners cannot join with other petitioners enrolled in different Divisions to mount a class action disputing any number of elections in which they were not entitled to vote

74 Validity of Royal Assent to Bills

741 During the proceedings Mr McClure sought to amend his petition to include a challenge to the validity of the Electoral Act on the basis that

Since we signed the Treaty of Versailles and we became an independent and sovereign nation in that respecthellipit is not within the powers of the Parliament to pass laws that have not been given royal assenthellipIndeed we have signed other acts of independence such as on 10 January 1920 when we assigned to the Covenant of the League of Nations and similarly also the Charter of the United Nations on 26 June 1945hellip(transcript 16 August 1999 p 23)

742 On occasion the AEC receives correspondence presenting similar arguments from individuals challenging the validity of provisions of the Electoral Act such as compulsory voting It is unclear how such fundamentally confused arguments manage to maintain currency in the community but Justice Hayne has made it clear in his decision in the McClure petition that they do not constitute a meaningful challenge to the laws of the Commonwealth

743 Justice Hayne noted that covering clause 5 of the Constitution provides that ldquoThis Act and all laws made by the Parliament of the Commonwealth under the Constitution shall be binding on the courts judges and people of every State and of every part of the Commonwealth notwithstanding the laws of any Statehelliprdquo This means that the Court will apply the law as provided by the Parliament within the terms of the Constitution

744 His Honour then went on to note that the Constitution provides the mechanism for Royal Assent to bills and that section 58 in particular provides that the Governor-General ldquoshall declare according to his discretion but subject to this Constitution that he assents in the Queenrsquos namerdquo His Honour concluded that there was nothing to suggest that this was not done in relation to the Electoral Act

8 Proceedings in the Ditchburn Petitions

81 The Ditchburn v AEO Qld Petition

811 On 3 October Mr Donald Ditchburn an elector for the Division of Herbert in Queensland filed a petition in the Brisbane Registry of the High Court disputing the election of all Senators elected at the half-Senate election for the State of Queensland In his petition Mr Ditchburn asserted his entitlement to vote at the election and asserted the following grounds for his petition (inter alia)

While sections 211 and 211A carefully avoid using the words ldquochooserdquo ldquochoicerdquo or ldquochosenrdquo it is an unavoidable pre-requisite of lodging statements specifying orders of preference that candidate or party officials choose the orders of preference given in the statements lodged with the Australian Electoral Officer

Where voters mark their Senate ballot papers ldquoabove the linerdquo ie in accordance with subsections 239(2) or (3) they select a political party or group which has lodged a group voting ticket pursuant to section 211 or section 211A

Section 272 creates a statutory fiction by ldquodeemingrdquo those ballot papers to have been marked according to an order of preference specified by that political party or group of candidates

No Senator is directly chosen by people who vote ldquoabove the linerdquo (refer to Senate ballot paper) ndash voters merely select the political party or group of candidates whose previously chosen order of preference is then attributed to the voter by the statutory fiction created under section 272

Consequently the provisions of the Commonwealth Electoral Act 1918 referred to above prescribe a method of electing Senators which resembles an electoral college and where Senators are indirectly chosen by the people of the Statehelliphellip

Hence those provisions conflict with section 7 of the Constitution of the Commonwealth and are therefore ultra vires the powers of Federal Parliament under sections 8 and 51(xxxvi) of the Constitution

The legislation also conflicts with the findings of the High Court in Attorney-General of Australia (ex re McKinlay) v Commonwealth (1975) 135 CLR 1 per Gibbs J at p 44 Stephen J at p 56 Mason J at p 61 and Murphy J at p 68

Of note is the decision of Gibbs CJ in McKenzie v Commonwealth (1984) 59 ALJR 190 which was limited to the arguments presented in that case and did not allude to whether Senators were directly or indirectly chosen by electors It is questionable whether this decision conflicts with the findings of the full bench of the High Court referred to in the preceding paragraph

812 The petitioner Mr Ditchburn asked the Court for the following orders

1 A declaration as to the validity of sections 211 211A and subsections 239(2) 239(3) and 273(5) paragraphs (c) (d) and (f) of the Commonwealth Electoral Act 1918

2 An order to annul the election of any Senator declared elected by the Australian Electoral Officer for Queensland pursuant to sections 211 211A 272 and subsections 239(2) 239(3) and 273(5) paragraphs (c) (d) and (f) of the Commonwealth Electoral Act 1918

813 On 22 and 31 March 1999 a summons and affidavit was filed with the Court by Mr Maurice Swan of the Australian Government Solicitor on behalf of the AEC seeking orders that the AEC have leave to enter an appearance in the proceedings that the name of the respondent (AEO Qld) be struck out and that the petition be dismissed or that proceedings be stayed on the grounds that there was no reasonable or probable cause of action or suit or that the proceeding is an abuse of the process of the Court

814 At the hearing on 22 July 1999 in Canberra before Justice Hayne of the High Court sitting as the Court of Disputed Returns Mr Gageler of counsel appeared for the AEC with Mr Geoffrey McCarthy and Mr Ditchburn represented himself on video-link

815 Mr Ditchburn did not opposed the application by the AEC to enter an appearance and leave was granted by the Court Mr Gageler for the AEC relied on the previous decisions of the Court in McKenzie v The Commonwealth (1984) 59 ALJR 190 Abbotto v AEC (1997) 71 ALJR 675 Soegemeier v Macklin (1985) 58 ALR 768 and most recently McClure v AEC (1999) 73 ALJR 1086

816 In the course of interchange with Justice Hayne the petitioner agreed that basis of his argument was that ldquoabove the linerdquo voting amounts to electors choosing a party by means of a group voting ticket rather than direct election of Senators The petitioner submitted that this system contravened section 7 of the Constitution which requires that the Senate be composed of Senators for each State directly chosen by the people of the State The petitioner referred to and relied upon sections 8 9 and 51(xxxvi) of the Constitution and submitted that the effect of group voting tickets provided for under sections 211 and 211A of the Electoral Act was to establish an ldquoelectoral collegerdquo the members of which are the party officials or group candidates listed on the ticket The petitioner submitted that group ticket voting ldquoabove the linerdquo means voting for a college rather than individual candidates

817 In support of his argument the petitioner also referred to the entitlement of parties under sections 211(2)(3) and 211A(2)(3) to lodge with the AEC a group ticket voting statement indicating two or three different orders of preference for the election of candidates The petitioner stated rightly that where a statement is lodged indicating two or three different ways in which a party directs preferences to be allocated the returning officer randomly distributes ballot papers into two or three equal piles (as the case may be)

818 For this reason any elector who voted ldquoabove the linerdquo by reference to a statement indicating two or three different orders for distribution of preferences had no control over how his or her preferences were distributed because the elector did not control on which ldquopilerdquo his or her ballot paper was placed It was submitted by the petitioner that the intervention of the returning officer when distributing the ballot papers contravened the requirement that Senators be chosen directly by the people

819 In the course of the interchange between Justice Hayne and the petitioner it became clear that His Honour was not attracted by any of the arguments put by the petitioner Relying upon earlier decisions of the Court Justice Hayne expressed his view that Parliamentrsquos provision for a complex system of Senate voting does not contravene section 7 of the Constitution It only addresses the manner in which direct voting is conducted His Honour rejected the proposition that the group voting ticket system interposes an electoral college between the choosers and the chosen

8110 The petitioner also sought to rely on section 8 of the Constitution despite express findings in McKenzie and Soegemeier that section 8 had no bearing on the validity of the group ticket voting provisions of the Electoral Act On several occasions Justice Hayne commented that the matters raised by the petitioner were more in the realm of political science than the legal question before the Court namely whether the group voting ticket system contravened the Constitution After some two hours of submissions Justice Hayne then reserved his decision

8111 Later on the same day 22 July Justice Hayne delivered his decision ordering that the petition be dismissed and that the petitioner Mr Ditchburn pay the costs of the respondent the AEC In his decision in Ditchburn v AEO Qld (unreported) Justice Hayne said the following

On 30 November 1998 Donald Kenneth Ditchburn filed an Election Petition pursuant to Div 1 of Pt XXII of the Electoral Act (Cth) (ldquothe Actrdquo) The petition was said to ldquo[concern] the election for Senators held in the State of Queensland held on Saturday 3 October 1998rdquohellip

The petition named as respondent the ldquoAustralian Electoral Officer for Queenslandrdquo The Australian Electoral Commission (ldquothe Commissionrdquo) sought leave to enter an appearance in the proceeding and to be represented and be heard and it sought an order under O 16 r 4 of the High Court Rules that the name of the respondent be struck out as improperly joined It has also sought an order that the petition be dismissed on the ground that it does

not set out facts which would justify any relief under the Act or in the alternative that it be stayed on the ground either that there is no reasonable or probable cause of action or suit or that the proceeding is an abuse of the process of the Court

Section 359 of he Act provides ldquoThe Electoral Commission shall be entitled by leave of the Court of Disputed Returns to enter an appearance in any proceedings in which the validity of any election or return is disputed and to be represented and heard thereon and in such case shall be deemed to be a party respondent to the petitionrdquo

No reason was offered why the Commission should not have the leave it seeks and accordingly leave was granted Because I consider that the petition cannot succeed and should be dismissed I need form no view on whether the respondent named in the petition was ldquoimproperly joinedrdquo within the meaning of O 16 r 4 of the Rules

The central complaint of the petitioner relates to what has come to be known as the ldquoabove the linerdquo and ldquobelow the linerdquo voting or ldquogroup votingrdquo system in Senate elections That is dealt with in ss 211 211A 239 and 272 of the Act and finds reflection in the provisions of s 273 governing scrutiny of votes in Senate electionshellip

Section 211 of the Act provides (in effect) that where the names of candidates nominated in a Senate election are included in a group the candidates may lodge a written statement that they wish voters in the election to indicate their preferences in relation to all the candidates in the election in an order (or any of up to three different orders) specified in the statement being an order that gives preferences to the candidates lodging the statement before any other candidate Section 211A of the Act makes like provision for candidates who are Senators or if there has been a dissolution of the Senate were Senators immediately before the dissolution and who are not members of a group There is no like provision for other candidates not part of a group

The constitutional validity of provisions like s 211 has twice been considered shyin McKenzie v Commonwealth (1984) 59 ALJR 190 57 ALR 747 and in Abbotto v Australian Electoral Commission 72 (1997) 71 ALJR 675 144 ALR 352 At the time of McKenzie the Act was cast in slightly different terms and did not contain s 211A Gibbs CJ rejected a submission that the group voting system then provided for the election of Senators was contrary to s 7 or s 16 of the Constitution shy

Section 7 provides (so far as relevant) ldquoThe Senate shall be composed of senators for each Sate directly chosen by the people of the State voting until the Parliament otherwise provides as one electoraterdquo

Section 16 provides ldquoThe qualifications of a senator shall be the same as those of a member of the House of Representativesrdquo

- and held that the provisions then in force did not lsquoso [offend] democratic principles as to render the sections beyond the power of the Parliament to enact (1984) 59 ALJR 190 at 191 57 ALIl 747 at 749 In Abbotto Dawson J held that there was no substance to the contention that the voting system provided for by ss 211 and 211A contravened s 10 of the Constitution

Section 10 provides ldquountil the Parliament otherwise provides but subject to this Constitution the laws in force in each State for the time being relating to elections for the more numerous House of the Parliament of tile State shall as nearly as practicable apply to elections of senators for the Staterdquo

The present petition suggests that the provisions of the Act dealing with above the line and below the line voting conflict with what was held by the Court in Attorney-General (Cth) Ex rel McKinlay v The Commonwealth (1975) 135 CLR 1 Particular reference was made to those parts of the reasons of Gibbs J (at 44) Stephen J (at 56) Mason J (at 61) and Murphy J (at 68) in which their Honours consider what is meant in s 24 of the Constitution when it says that ldquothe House of Representatives shall be composed of members directly chosen by the people of the Commonwealthrdquo

Like s 24 s 7 of the Constitution also uses the expression ldquodirectly chosen by the peoplerdquo and as Stephen J said in McKinlay (at 56) ldquoEach [s 7 and s 24] calls for a system of representative democracy in the sense that the Houses of the legislature are to be composed of members whom the people choose in each the method of choice is required to be that of direct choice there is to be no interposition of an electoral college between the chooser and the chosenrdquo

The petitioner contended that neither McKenzie v The Commonwealth nor Abbotto v Australian Electoral Commission can be read as dealing directly with the arguments he now seeks to advance I think the better view is that Gibbs CJ did consider these matters in McKenzie and that the decision of Dawson J in Abbotto is inconsistent with the petitionerrsquos contentions

However that may be as I said in McClure I do not accept that the provisions for above the line and below the line voting in Senate elections are contrary to s 7 of the Constitution See also McKenzie v The Commonwealth (1987) 59 ALJR 190 57 ALR 747 Abbotto v Australian Electoral Commission (1997) 71 ALJR 675 144 ALR 352 In particular l do not accept the contention that those provisions ldquoprescribe a method of electing Senators which resembles an electoral college and where Senators are indirectly chosen by the people of the Staterdquo

The petition cannot succeed It should be dismissed

8112 The second Ditchburn petition was heard and decided on the same day

82 The Ditchburn v DRO Herbert Petition

821 On 3 October Mr Donald Ditchburn an elector for the Division of Herbert in Queensland filed a petition in the Brisbane Registry of the High Court disputing the election of the Member for Herbert in Queensland In his petition Mr Ditchburn asserted his entitlement to vote at the election and asserted the following grounds for his petition (inter alia)

hellipElectors (like me) whose first preference for a minor party candidate was initially counted as their vote also had their ballot papers counted for their second third or fourth etc preference candidates and those candidates substituted by the DRO as the electorsrsquo alternative votes

As an electorrsquos vote can be ascribed to any candidate in hisher order of preference it follows that the elector must simultaneously vote for all candidates indicated on his ballot paper Under this construction if electors only vote for their first preference subsequent preferences should not be counted

Thus Section 274 of the Act has the effect of making the preferences each elector indicates pursuant to Section 240(1)(b) into multiple votes for the one vacant seat

This construction conflicts with the express and implied provisions of Section 30 of the Constitution of the Commonwealth of Australia which requires in part ldquobut in the choosing of members each elector shall vote only oncerdquo

But if Section 274 of the Act is construed as requiring the Divisional Returning Officer to ldquotransferrdquo the first preference votes of excluded candidates to opponents the DRO acts as an intermediary (or agent) in the votersrsquo choosing of members of the House of Representatives

The intervention of the DRO actually determines which of any electors preferences is finally accepted in the count of votes and thus determines which candidate the elector actually chooses

Consequently the intervention or agency of an officer of the Crown in the choosing of members means that such members are indirectly chosen by electors whose votes were transferred from excluded candidates This requirement of the Act conflicts with the first provision of Section 24 of the Constitution

ldquo24 The House of Representatives shall be composed of members directly chosen by the people of the Commonwealth rdquo

As Subsections 240(1)(b) 240(2) and 274(7) para (d) 274(7AA) 274(7AB) and 274(7AC) of the Commonwealth Electoral Act 1918 either conflict with Section 24 or with Section 30 of the Constitution of the Commonwealth (or with both) those provisions of the Act should be ultra vires Parliamentsrsquo legislative power under Section 31 and Section 51(xxxvi)

(It is not contended that MHRrsquos elected by gaining an absolute majority of first preference votes pursuant to Subsection 240(1)(a) of the Act are affected)

The facts and inferences referred to above also apply to comparable legislation with respect to the election of Senators filling the final Senate positions for each State Thus Subsection 239(1)(b) and Section 273 Subsections (13) (13AA) (13A) (13B) (13C) (14) (15) and (16) of the Commonwealth Electoral Act 1918 conflict with either Section 7 or Section 8 of the Constitution of the Commonwealth These provisions of the Act should similarly be ultra vires Sections 9 10 and 51(xxxvi) of the Constitutionhellip

822 The petitioner Mr Ditchburn asked the Court for the following orders

1 A declaration as to the validity of Subsections 240(1)(b) 240(2) and 274(7) para (d) 274(7AA) 274(7AB) and 274(7AC) of the Commonwealth Electoral Act 1918

2 An order to annul the election of the Member for Herbert declared elected by the Divisional Returning Officer for Herbert pursuant to the provisions of the Act referred to in 1 above

823 On 22 and 31 March 1999 a summons and affidavit was filed with the Court by Mr Maurice Swan of the Australian Government Solicitor on behalf of the AEC seeking orders that the AEC have leave to enter an appearance in the proceedings that the name of the respondent (DRO Herbert) be struck out and that the petition be dismissed or that proceedings be stayed on the grounds that there was no reasonable or probable cause of action or suit or that the proceeding is an abuse of the process of the Court

824 At the hearing on 22 July 1999 in Canberra before Justice Hayne of the High Court sitting as the Court of Disputed Returns Mr Gageler of counsel appeared for the AEC with Mr Geoffrey McCarthy and Mr Ditchburn represented himself on video-link

825 Mr Ditchburn did not oppose the application by the AEC to enter an appearance and leave was granted by the Court Mr Gageler for the AEC relied on the decision of the Court in Langer v The Commonwealth (1996) 186 CLR 302 where all members of the Court including Justice Dawson who otherwise dissented held section 240 of the Electoral Act valid

826 In reply the petitioner submitted that his petition was different in principle from the matters considered in Langer because his petition relied on the word ldquodirectlyrdquo appearing in section 24 of the Constitution This he submitted was not a matter raised or considered by the Court in Langer Justice Hayne listened to the petitioner at length but frequently commented that the issues being raised by the petitioner were matters of political science not constitutional validity His Honour then reserved his decision

827 Later on the same day 22 July 1999 Justice Hayne delivered his decision ordering that the petition be dismissed and that the petitioner Mr Ditchburn pay the costs of the AEC In his decision in Ditchburn v DRO Herbert (unreported) Justice Hayne said the following

On 7 December 1998 Donald Kenneth Ditchburn filed an Election Petition pursuant to Div 1 of Pt XXII of the Electoral Act (Cth) (ldquothe Actrdquo) The petition was said to concern ldquothe election for the House of Representatives seat for the Division of Herbert held on Saturday 3 October 1998rdquo It alleged that the petitioner is enrolled in the Federal Division of Herbert in the State of Queensland and it appears from other allegations in the petition that he was eligible to vote in that Division in the election held on 3 October 1998

The Australian Electoral Commission seeks leave to enter an appearance in the proceeding and to be represented and be heard It seeks an order under O 16 r 4 of the High Court Rules that the name of the respondent to the petition be struck out It also seeks an order dismissing the petition or staying proceedings on the petition on the ground either that there is no reasonable or probable cause of action or suit or that the proceeding is an abuse of the process of the Court

As was the case in the other electoral petition which was instituted by Mr Ditchburn and with which I have dealt today Ditchburn v Australian Electoral Officer for Queensland [1999] HCA no reason was offered why the Commission should not have the leave it sought (under s 359 of the Act) and accordingly leave was given for it to appear be represented and heard on the petition Again however I need form no view on whether the respondent named in the petition was ldquoimproperly joinedrdquo within the meaning of O 16 r 4 of the Rules

The petitioner seeks to contend that the system of preferential voting for candidates in House of Representatives elections is contrary to the requirements of s 24 of the Constitution that the members of that House be ldquodirectly chosen by the peoplerdquo and s 30 of the Constitution that ldquoin the choosing of members each elector shall vole only oncerdquo In particular he alleges that ss 240(1)(b) 240(2) 274(7)(d) 274(7AA) 274(7AB) and 274(7AC) of the Act are invalid and he seeks a declaration to that effect and ldquoan order to annul the election of the Member for Herbert declared elected by the Divisional Returning Officer for Herbertrdquo pursuant to these provisionshellip

In my opinion these arguments [in the petition] are not tenable Some other arguments not raised by the petition were mentioned by the petitioner in oral argument They were by and large arguments of a political rather than legal nature Even if open to the petitioner sections 355 358 they do not assist in resolving the consyitulional issues that the petitioner sought to raise

In Langer v The Commonwealth (1996) 186 CLR 302 at least five members of the Court held at 316-317 per Brennan CJ 333 per Toohey and Gaudron JJ 348-349 per Gummow J that s 240 of the Act was a valid law within ss 31 and 51(xxxvi) of the Constitution and was not inconsistent with the requirement of s 24 that the House of Representatives shall be comprised of members ldquodirectly chosen by the people of the Commonwealthrdquo See also Judd v McKeon (1926) 38 CLR 380 Faderson v Bridger (1971) 126 CLR 217 And it may well be that the other two members of the Court were of the same opinion at 323 per Dawson J 340-341 per McHugh J The argument which the petitioner seeks to advance is at least to the extent that he relies on s 24 an argument which I am bound to hold would fail Even if Langer does not decide the further point on which the petitioner seeks to rely (that under the

preferential voting system a voter votes more than once contrary to s 30) that contention is one which must fail

Prior to Federation plural voting related to property qualification was allowed in Tasmania Western Australia and Queensland Attorney-General (Cth) Ex rel McKinlay v The Commonwealth (1975) 135 CLR 1 at 19 per Barwick CJ McGinty v Western Australia (1996) 186 CLR 140 at 281-282 per Gummow J It is clear from the Debates at the 1891 Convention in Sydney that the question of plural voting was well in the minds of the members of the Constitutional Conventions from which the terms of the Constitution emerged Official Record of the Debates of the Australasian Federal Convention (Sydney) 1891 vol 1 613-617 But the plural voting then under consideration permitted a voter to cast more than one expression of his or (in South Australia and Western Australia) her choice of candidate

The preferential voting system was provided for House of Representatives elections by s 124 of the Commonwealth Electoral Act 1918 and for the Senate by s 7 of the Commonwealth Electoral Act 1919 As McHugh J noted in Langer v The Commonwealth at 342 ldquoCompulsory preferential voting does not appear to have been introduced into Australia until 1911 when it was introduced in Western Australia But optional preferential voting was used in Queensland after 1892rdquo Even so the Constitution that emerged from the Constitutional Conventions ldquodid not entrench the secret ballot compulsory voting preferential or proportional votingrdquo McGinty v Western Australia (1996) 186 CLR 140 at 283 per Gummow J All that was said (so far as presently relevant) was that the members of the House of Representatives were to be ldquodirectly chosen by the peoplerdquo section 24 that until the Parliament otherwise provides ldquothe qualification of electors of members of the House of Representatives shall be in each State that which is prescribed by the law of the Slate as the qualification of electors of the more numerous House of Parliament of the Staterdquo section 30 and that ldquoin the choosing of members each elector shall vote only oncerdquo section 30

The petitioner placed some emphasis on what was said by McHugh J in Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106 at 228-233 about ldquorepresentative governmentrdquo But as Brennan CJ pointed out in McGinty v Western Australia at 169 the expressions ldquorepresentative governmentrdquo and ldquorepresentative democracyrdquo are not found in the Constitution and although they are useful terms to describe the effect of ss 7 and 24 ldquo[i]t is logically impermissible to treat lsquorepresentative democracyrsquo as though it were contained in the Constitution to attribute to the term a meaning or content derived from sources extrinsic to the Constitution and then to invalidate a law for inconsistency with the meaning or content so attributedrdquo

The requirements that members be ldquodirectly chosenrdquo and that ldquoeach elector shall vote only oncerdquo do not preclude the Parliament from providing (as it has) for a compulsory preferential voting system Langer v The Commonwealth Soegemeier v Macklin (1985) 58 ALR 768 Under that system each elector casts but one expression of his or her choice of member in one electoral division The choice is expressed in a complex way but it remains a single expression of the will of that voter And perhaps more relevantly the voter cannot cast a vote in more than one electoral district as voters could in those Colonies that permitted plural voting related to property qualifications The voter votes only once

No doubt it is right to say as the petitioner does that the distribution of preferences requires electoral officers to undertake the process prescribed in those parts of s 274 which deal with that subject But the performance of those tasks does not mean that the member is not ldquodirectly chosenrdquo as that expression is used in s 24

The petition cannot succeed It should be dismissed

9 Implications of the Ditchburn Decisions

91 Senate Group Ticket Voting

911 As discussed in part 71 above in this submission it is not unusual for independent Senate candidates to belatedly discover generally at the time of nomination that they are not entitled to appear on the ballot paper as a group ldquoabove the linerdquo and thereby take advantage of the ticket voting system for the Senate This may give rise to some protest at the ldquofairnessrdquo of sections 211 and 211A of the Electoral Act and can result in petitions to the Court of Disputed Returns after the election on the grounds that the law is both unconstitutional and ldquounfairrdquo to independent candidates

912 In Ditchburn v AEO Qld (unreported) Justice Hayne has confirmed the decisions in McClure v AEC (1999) 73 ALJR 1086 in Abbotto v AEC (1997) 71 ALJR 675 and in McKenzie v The Commonwealth (1984) 59 ALJR 190 that the Senate group ticket voting system is not unconstitutional and that it is not for the Court to decide whether the Senate group voting system is ldquofairrdquo or ldquounfairrdquo to independent candidates

913 In Ditchburn v AEO Qld Justice Hayne dealt with the further contention that the Senate group ticket voting is contrary to section 7 of the Constitution which requires that senators be ldquodirectly chosen by the peoplerdquo His Honour said that he did not accept the contention that sections 211 and 211A of the Electoral Act ldquoprescribe a method of electing Senators which resembles an electoral college and where Senators are indirectly chosen by the people of the Staterdquo

914 Full Preferential Voting

915 In Ditchburn v DRO Herbert (unreported) it was contended that full preferential voting is contrary to section 24 of the Constitution which requires that members be ldquodirectly chosen by the peoplerdquo and section 30 of the Constitution which requires that ldquoin the choosing of members each elector shall vote only oncerdquo

916 Justice Hayne did not accept that full preferential voting under section 240 of the Electoral Act is contrary to section 24 of the Constitution which requires that members be ldquodirectly chosen by the peoplerdquo In coming to this decision His Honour relied on the decision of the High Court in Langer v The Commonwealth (1996) 186 CLR 302 In Langer the High Court held that section 240 of the Electoral Act is a valid law within sections 31 and 51(xxxvi) of the Constitution and not inconsistent with the requirements of section 24 of the Constitution Justice Hayne noted that the decision in Langer was consistent with the decisions in Judd v McKeon (1926) 38 CLR 380 and Faderson v Bridger (1971) 126 CLR 217

917 Further Justice Hayne did not accept that full preferential voting is contrary to section 30 of the Constitution which requires that ldquoin the choosing of members each elector shall vote only oncerdquo In coming to this decision Justice Hayne relied on Attorney-General (Cth) Ex rel McKinlay v The Commonwealth (1975) 135 CLR 1 McGinty v Western Australia (1996) 186 CLR 140 Langer v The Commonwealth (1996) 186 CLR 302 and Soegemeier v Macklin (1985) 58 ALR 768

918 His Honour noted that prior to Federation plural voting on the basis of property qualifications was allowed in Tasmania Western Australia and Queensland It was clear from the Debates at the 1891 Convention in Sydney that the question of plural voting was well in the minds of the members of the Constitutional Conventions from which the terms of the Constitution emerged and hence the phrase ldquoin the choosing of members each elector shall vote only oncerdquo It is notable in this context that the Constitution that emerged from the Constitutional Conventions did not entrench either the secret ballot compulsory voting preferential voting or proportional voting

919 His Honour concluded that under the full preferential voting system each elector casts but one expression of his or her choice of member in one electoral Division The choice is expressed in a complex way but it remains a single expression of the will of that voter That is at federal elections with full preferential voting the voter votes only once All that the Constitution appears to proscribe is plural voting based on property qualifications as was permitted in colonial times

10 Summary of Outcomes in the 1998 Election Petitions

bull The Court of Disputed Returns has jurisdiction to hear election petitions disputing the constitutional qualifications of candidates

bull The United Kingdom is a ldquoforeign powerrdquo under the terms of section 44(i) of the Constitution

bull Ms Heather Hill a elected candidate for the Senate in Queensland was disqualified under section 44(i) of the Constitution as a British subject at the time of her nomination

bull The Senate group voting system is a valid law of the Parliament under the terms of the Constitution including sections 7 and 24 which require that senators and members be ldquodirectly chosen by the peoplerdquo

bull It is not for the Court to decide whether or not the Senate group voting system is fair or unfair to independent candidates

bull There is no provision for class actions in election petitions and in any case electors can only dispute the elections for which they were entitled to vote

bull The Court will apply the law as provided by the Parliament within the terms of the Constitution and there is nothing to suggest that Royal Assent was not properly given to the Electoral Act and its amending Acts

bull Section 240 of the Electoral Act which provides for full preferential voting is a valid law within the terms of the Constitution including sections 7 and 24 which require that members and senators be ldquodirectly chosen by the peoplerdquo and sections 8 and 30 which require that ldquoeach elector shall vote only oncerdquo

ATTACHMENTS

Attachment 1

Sue v Hill (S1791998 Gleeson CJ 19 March 1999 unreported)

See attached

Attachment 2

Sue v Hill (1999) 73 ALJR 1016

See attached

Attachment 3

Extract from AEC submission No124 of 15 November 1993 re costs

432 During the hearing on 1 October 1993 on the question of costs Justice Gaudron made a number of observations on the ease with which election petitions which may have no legal merit can be lodged with the Court of Disputed Returns under the current provisions of the Commonwealth Electoral Act 1918 For example on page 54 of the transcript Justice Gaudron said the following

The Act is by no means of model of clarity as to who can bring petitions it sets it up so that a person can come without the benefit of legal advice which might deflect it In fact it discourages positively prohibits legal representation without leave so that the Act is virtually inviting people to bring petitions which have not had the benefit of legal analysis

433 Her Honour then appeared to agree with the proposition of Mr Gageler for the Commonwealth that whilst the $100 security for costs required under section 356 of the Act in order to lodge a petition may have been a deterrent to vexatious or frivolous petitioners when it was first legislated in 1902 (when it was 50 pounds) it can hardly be regarded as a meaningful deterrent these days

434 In discussing with Mr Gageler the scheme of the Act which appears to encourage unimpeded access to the Court of Disputed Returns by any and all petitioners Justice Gaudron said at page 55 of the transcript

Virtually unimpeded access and as you tell me five out of six [of the petitions] have failed One well knows that some of the grounds that have been advanced in these petitions - and I put Mr Hudsons to one side - have been grounds that one would think would not have survived legal advice

435 In reference to section 370 of the Act which provides that no party to the petition shall except by consent of all parties or by leave of the Court be represented by counsel or solicitor [and] in no case shall more than one counsel or solicitor appear on behalf of any party Justice Gaudron went on to say

But very rarely do you have a provision such as this - you do in some Acts but not commonly - no legal representation except by leave So what you are doing is you are in fact encouraging people to come to the Court with arguments that do not necessarily have a basis in law

436 And finally on page 58 of the transcript Justice Gaudron said

I was hoping maybe that the legislature might see fit to do something with respect to the provisions as they stand It is by no means a model of clarity is it that part of the Act

437 These comments from the Bench are directed to petitions that ldquowould not have survived legal advicerdquo that is vexatious andor frivolous petitions and not to the Hudson petition in particular as is obvious from Justice Gaudronrsquos comment that the ease of access to the Court for petitioners of limited means such as Mr Hudson is ldquocommendablerdquo (see paragraph 427 above)

438 If any review of the provisions of the Act relating to costs and legal representation were to be undertaken it would need to be in the context of the following considerations

439 For the average petitioner it costs a total of $900 in set fees and charges to lodge a petition made up of the $100 deposit as security for costs under section 356 of the Commonwealth Electoral Act 1918 and the $300 filing fee and the $500 hearing fee under regulations 4(1) and 5(1) respectively of the High Court of Australia (Fees) Regulations If a petitioner can provide a health care card or a health benefit card or provide other reasons acceptable to the High Court Registry that indicate financial constraints then the High Court Regulations allow the $800 High Court fees to be waived There is no waiver under the Commonwealth Electoral Act 1918 for the $100 deposit as security for costs

4310 In addition to these set fees and the deposit under Order 68 rule 3 of the High Court Rules forthwith after filing a petition the petitioner must arrange for the petition to be published in the Commonwealth Gazette and the relevant State Gazette and in the case of an election for the House of Representatives the petitioner must publish a notice giving details of the petition in a newspaper circulating in the relevant electoral Division Further under Order 68 rule 5 of the Rules the petitioner must 28 days after the filing of the petition serve a copy of the petition upon every person whose election or return is disputed by the petition These requirements under the High Court Rules for publication and service can clearly add up to a considerable financial burden to the petitioner

4311 The Commission has no difficulty with the fees service and advertising requirements of the High Court Rules in so far as they apply to petitions disputing elections The Commission does however agree with Justice Gaudron that the provisions in the Commonwealth Electoral Act 1918 relating to costs and legal representation are dated and inconsistent

4312 The history of the introduction in 1902 to 1905 of the provisions of the Commonwealth Electoral Act 1918 relating to costs and legal representation in the Court of Disputed Returns will not be canvassed in detail in this Submission However it is worth noting that the two Houses of Parliament were divided at that time over whether to legislate for a non-judicial parliamentary Elections and Qualifications Committee or a Court of Disputed Returns with full judicial powers to settle election disputes The primary cause of concern was the high cost of legal fees for respondents required to defend their election before a court against wealthy and possibly vexatious petitioners

4313 In the outcome a Court of Disputed Returns was agreed upon as being more impartial in the settling of election disputes than a Parliamentary committee However as a trade-off a provision was inserted in the Act limiting legal representation in order to protect elected parliamentarians from the costs of vexatious challenges Section 370 of the Commonwealth Electoral Act 1918 which provides that except by consent of all parties or by leave of the Court no party shall be represented by counsel or solicitor was therefore inserted by section 57 of the Commonwealth Electoral Act 1905

4314 As a corollary the deposit to be paid by the petitioner as security for costs was held at a low level in the expectation that court costs for the respondents would be contained by the limitation on legal representation The further trade-off was that by holding the deposit to a low level access to the court was not limited for the impecunious petitioner with a genuine dispute Section 195 of the Commonwealth

Electoral Act 1902 provided that the deposit for security for costs should be 50 pounds That amount has not substantially changed in the intervening 90 years and now stands at $100 in section 356 of the Act

4315 Despite the concerns of the early legislators to protect elected parliamentarians from wealthy and vexatious petitioners modern day realities are that respondents will rarely appear without legal representation and more often than not will hire a Queens Counsel whose fee is guaranteed from party or other sympathetic resources It is also unlikely that the court would decline to consent to such representation if there were to be any objection from the petitioner This suggests that section 370 of the Act limiting legal representation no longer serves any practical purpose

4316 The provision does not appear in any way to either advantage or disadvantage the petitioner The impecunious petitioner by obtaining waivers on fees and by appearing without legal representation has ready access to the court The problem that Justice Gaudron has highlighted is that petitioners are encouraged by the apparent limitation on legal representation to bring disputes to court which might never have survived proper legal advice

4317 If section 370 were to be deleted from the legislation then the logical nexus between that provision and section 356 which sets a low $100 as the petitionerrsquos deposit for security for costs would fall away However there are other provisions relating to costs in the Act sections 360 (1)(ix) 360(1)(4) 372 and 373 for example which would need to be considered as part of any general review of the issue of costs and legal representation that the Committee might recommend

Attachment 4

Extract from AEC submission No 96 of 23 October 1996 on Federal Court

61 During the course of the proceedings it appeared as if evidentiary matters might have to be resolved in the petition by the examination of declaration envelopes and the calling of witnesses This could have involved up to 1594 individual investigations The High Court sitting as the Court of Disputed Returns has made it clear on at least one recent occasion (the Webster v Deahm petition in 1993) that it is not amendable to dealing with such a load and would if such evidentiary matters were to be pressed refer the petition to the relevant State Supreme Court This option is available to the Court under section 354 of the CEA

62 However it became clear during proceedings in this petition that there was a preference by the Bench for the questions of law to be resolved by the High Court with only questions of evidence being determined by the Supreme Court rather than the whole of the petition being heard and determined by the Supreme Court It was also the preferred position of the AEC that if a petition were to be split and any questions of evidence were to be remitted to the Supreme Court then the evidentiary determinations should be sent back to the High Court for final decision on the appropriate relief

63 It is the view of the AEC that the High Court and not a Supreme Court of a State should make final determinations on the proper outcome of challenges to a federal election for example whether or not a federal election should be voided The interpretation of section 354 of the CEA by the Chief Justice on 15 August 1996 means that it is not possible for the evidentiary and determinative matters in a petition to be ldquosplitrdquo between the High Court and a Supreme Court under the legislation as it currently standshellip

73 The Snowdon petition also gave rise to a procedural issue about the ldquosplittingrdquo of petitions and the remitting of questions of evidence from the High Court to inferior courts

The AEC recommends that section 354 of the CEA be amended to enable the High Court to remit aspects of a petition to a Supreme Court but so that the High Court retains final jurisdiction on relief

Attachment 5

McClure v AEC (1999) 73 ALJR 1086

See attached

74 Validity of Royal Assent to Bills

741 During the proceedings Mr McClure sought to amend his petition to include a challenge to the validity of the Electoral Act on the basis that

Since we signed the Treaty of Versailles and we became an independent and sovereign nation in that respecthellipit is not within the powers of the Parliament to pass laws that have not been given royal assenthellipIndeed we have signed other acts of independence such as on 10 January 1920 when we assigned to the Covenant of the League of Nations and similarly also the Charter of the United Nations on 26 June 1945hellip(transcript 16 August 1999 p 23)

742 On occasion the AEC receives correspondence presenting similar arguments from individuals challenging the validity of provisions of the Electoral Act such as compulsory voting It is unclear how such fundamentally confused arguments manage to maintain currency in the community but Justice Hayne has made it clear in his decision in the McClure petition that they do not constitute a meaningful challenge to the laws of the Commonwealth

743 Justice Hayne noted that covering clause 5 of the Constitution provides that ldquoThis Act and all laws made by the Parliament of the Commonwealth under the Constitution shall be binding on the courts judges and people of every State and of every part of the Commonwealth notwithstanding the laws of any Statehelliprdquo This means that the Court will apply the law as provided by the Parliament within the terms of the Constitution

744 His Honour then went on to note that the Constitution provides the mechanism for Royal Assent to bills and that section 58 in particular provides that the Governor-General ldquoshall declare according to his discretion but subject to this Constitution that he assents in the Queenrsquos namerdquo His Honour concluded that there was nothing to suggest that this was not done in relation to the Electoral Act

8 Proceedings in the Ditchburn Petitions

81 The Ditchburn v AEO Qld Petition

811 On 3 October Mr Donald Ditchburn an elector for the Division of Herbert in Queensland filed a petition in the Brisbane Registry of the High Court disputing the election of all Senators elected at the half-Senate election for the State of Queensland In his petition Mr Ditchburn asserted his entitlement to vote at the election and asserted the following grounds for his petition (inter alia)

While sections 211 and 211A carefully avoid using the words ldquochooserdquo ldquochoicerdquo or ldquochosenrdquo it is an unavoidable pre-requisite of lodging statements specifying orders of preference that candidate or party officials choose the orders of preference given in the statements lodged with the Australian Electoral Officer

Where voters mark their Senate ballot papers ldquoabove the linerdquo ie in accordance with subsections 239(2) or (3) they select a political party or group which has lodged a group voting ticket pursuant to section 211 or section 211A

Section 272 creates a statutory fiction by ldquodeemingrdquo those ballot papers to have been marked according to an order of preference specified by that political party or group of candidates

No Senator is directly chosen by people who vote ldquoabove the linerdquo (refer to Senate ballot paper) ndash voters merely select the political party or group of candidates whose previously chosen order of preference is then attributed to the voter by the statutory fiction created under section 272

Consequently the provisions of the Commonwealth Electoral Act 1918 referred to above prescribe a method of electing Senators which resembles an electoral college and where Senators are indirectly chosen by the people of the Statehelliphellip

Hence those provisions conflict with section 7 of the Constitution of the Commonwealth and are therefore ultra vires the powers of Federal Parliament under sections 8 and 51(xxxvi) of the Constitution

The legislation also conflicts with the findings of the High Court in Attorney-General of Australia (ex re McKinlay) v Commonwealth (1975) 135 CLR 1 per Gibbs J at p 44 Stephen J at p 56 Mason J at p 61 and Murphy J at p 68

Of note is the decision of Gibbs CJ in McKenzie v Commonwealth (1984) 59 ALJR 190 which was limited to the arguments presented in that case and did not allude to whether Senators were directly or indirectly chosen by electors It is questionable whether this decision conflicts with the findings of the full bench of the High Court referred to in the preceding paragraph

812 The petitioner Mr Ditchburn asked the Court for the following orders

1 A declaration as to the validity of sections 211 211A and subsections 239(2) 239(3) and 273(5) paragraphs (c) (d) and (f) of the Commonwealth Electoral Act 1918

2 An order to annul the election of any Senator declared elected by the Australian Electoral Officer for Queensland pursuant to sections 211 211A 272 and subsections 239(2) 239(3) and 273(5) paragraphs (c) (d) and (f) of the Commonwealth Electoral Act 1918

813 On 22 and 31 March 1999 a summons and affidavit was filed with the Court by Mr Maurice Swan of the Australian Government Solicitor on behalf of the AEC seeking orders that the AEC have leave to enter an appearance in the proceedings that the name of the respondent (AEO Qld) be struck out and that the petition be dismissed or that proceedings be stayed on the grounds that there was no reasonable or probable cause of action or suit or that the proceeding is an abuse of the process of the Court

814 At the hearing on 22 July 1999 in Canberra before Justice Hayne of the High Court sitting as the Court of Disputed Returns Mr Gageler of counsel appeared for the AEC with Mr Geoffrey McCarthy and Mr Ditchburn represented himself on video-link

815 Mr Ditchburn did not opposed the application by the AEC to enter an appearance and leave was granted by the Court Mr Gageler for the AEC relied on the previous decisions of the Court in McKenzie v The Commonwealth (1984) 59 ALJR 190 Abbotto v AEC (1997) 71 ALJR 675 Soegemeier v Macklin (1985) 58 ALR 768 and most recently McClure v AEC (1999) 73 ALJR 1086

816 In the course of interchange with Justice Hayne the petitioner agreed that basis of his argument was that ldquoabove the linerdquo voting amounts to electors choosing a party by means of a group voting ticket rather than direct election of Senators The petitioner submitted that this system contravened section 7 of the Constitution which requires that the Senate be composed of Senators for each State directly chosen by the people of the State The petitioner referred to and relied upon sections 8 9 and 51(xxxvi) of the Constitution and submitted that the effect of group voting tickets provided for under sections 211 and 211A of the Electoral Act was to establish an ldquoelectoral collegerdquo the members of which are the party officials or group candidates listed on the ticket The petitioner submitted that group ticket voting ldquoabove the linerdquo means voting for a college rather than individual candidates

817 In support of his argument the petitioner also referred to the entitlement of parties under sections 211(2)(3) and 211A(2)(3) to lodge with the AEC a group ticket voting statement indicating two or three different orders of preference for the election of candidates The petitioner stated rightly that where a statement is lodged indicating two or three different ways in which a party directs preferences to be allocated the returning officer randomly distributes ballot papers into two or three equal piles (as the case may be)

818 For this reason any elector who voted ldquoabove the linerdquo by reference to a statement indicating two or three different orders for distribution of preferences had no control over how his or her preferences were distributed because the elector did not control on which ldquopilerdquo his or her ballot paper was placed It was submitted by the petitioner that the intervention of the returning officer when distributing the ballot papers contravened the requirement that Senators be chosen directly by the people

819 In the course of the interchange between Justice Hayne and the petitioner it became clear that His Honour was not attracted by any of the arguments put by the petitioner Relying upon earlier decisions of the Court Justice Hayne expressed his view that Parliamentrsquos provision for a complex system of Senate voting does not contravene section 7 of the Constitution It only addresses the manner in which direct voting is conducted His Honour rejected the proposition that the group voting ticket system interposes an electoral college between the choosers and the chosen

8110 The petitioner also sought to rely on section 8 of the Constitution despite express findings in McKenzie and Soegemeier that section 8 had no bearing on the validity of the group ticket voting provisions of the Electoral Act On several occasions Justice Hayne commented that the matters raised by the petitioner were more in the realm of political science than the legal question before the Court namely whether the group voting ticket system contravened the Constitution After some two hours of submissions Justice Hayne then reserved his decision

8111 Later on the same day 22 July Justice Hayne delivered his decision ordering that the petition be dismissed and that the petitioner Mr Ditchburn pay the costs of the respondent the AEC In his decision in Ditchburn v AEO Qld (unreported) Justice Hayne said the following

On 30 November 1998 Donald Kenneth Ditchburn filed an Election Petition pursuant to Div 1 of Pt XXII of the Electoral Act (Cth) (ldquothe Actrdquo) The petition was said to ldquo[concern] the election for Senators held in the State of Queensland held on Saturday 3 October 1998rdquohellip

The petition named as respondent the ldquoAustralian Electoral Officer for Queenslandrdquo The Australian Electoral Commission (ldquothe Commissionrdquo) sought leave to enter an appearance in the proceeding and to be represented and be heard and it sought an order under O 16 r 4 of the High Court Rules that the name of the respondent be struck out as improperly joined It has also sought an order that the petition be dismissed on the ground that it does

not set out facts which would justify any relief under the Act or in the alternative that it be stayed on the ground either that there is no reasonable or probable cause of action or suit or that the proceeding is an abuse of the process of the Court

Section 359 of he Act provides ldquoThe Electoral Commission shall be entitled by leave of the Court of Disputed Returns to enter an appearance in any proceedings in which the validity of any election or return is disputed and to be represented and heard thereon and in such case shall be deemed to be a party respondent to the petitionrdquo

No reason was offered why the Commission should not have the leave it seeks and accordingly leave was granted Because I consider that the petition cannot succeed and should be dismissed I need form no view on whether the respondent named in the petition was ldquoimproperly joinedrdquo within the meaning of O 16 r 4 of the Rules

The central complaint of the petitioner relates to what has come to be known as the ldquoabove the linerdquo and ldquobelow the linerdquo voting or ldquogroup votingrdquo system in Senate elections That is dealt with in ss 211 211A 239 and 272 of the Act and finds reflection in the provisions of s 273 governing scrutiny of votes in Senate electionshellip

Section 211 of the Act provides (in effect) that where the names of candidates nominated in a Senate election are included in a group the candidates may lodge a written statement that they wish voters in the election to indicate their preferences in relation to all the candidates in the election in an order (or any of up to three different orders) specified in the statement being an order that gives preferences to the candidates lodging the statement before any other candidate Section 211A of the Act makes like provision for candidates who are Senators or if there has been a dissolution of the Senate were Senators immediately before the dissolution and who are not members of a group There is no like provision for other candidates not part of a group

The constitutional validity of provisions like s 211 has twice been considered shyin McKenzie v Commonwealth (1984) 59 ALJR 190 57 ALR 747 and in Abbotto v Australian Electoral Commission 72 (1997) 71 ALJR 675 144 ALR 352 At the time of McKenzie the Act was cast in slightly different terms and did not contain s 211A Gibbs CJ rejected a submission that the group voting system then provided for the election of Senators was contrary to s 7 or s 16 of the Constitution shy

Section 7 provides (so far as relevant) ldquoThe Senate shall be composed of senators for each Sate directly chosen by the people of the State voting until the Parliament otherwise provides as one electoraterdquo

Section 16 provides ldquoThe qualifications of a senator shall be the same as those of a member of the House of Representativesrdquo

- and held that the provisions then in force did not lsquoso [offend] democratic principles as to render the sections beyond the power of the Parliament to enact (1984) 59 ALJR 190 at 191 57 ALIl 747 at 749 In Abbotto Dawson J held that there was no substance to the contention that the voting system provided for by ss 211 and 211A contravened s 10 of the Constitution

Section 10 provides ldquountil the Parliament otherwise provides but subject to this Constitution the laws in force in each State for the time being relating to elections for the more numerous House of the Parliament of tile State shall as nearly as practicable apply to elections of senators for the Staterdquo

The present petition suggests that the provisions of the Act dealing with above the line and below the line voting conflict with what was held by the Court in Attorney-General (Cth) Ex rel McKinlay v The Commonwealth (1975) 135 CLR 1 Particular reference was made to those parts of the reasons of Gibbs J (at 44) Stephen J (at 56) Mason J (at 61) and Murphy J (at 68) in which their Honours consider what is meant in s 24 of the Constitution when it says that ldquothe House of Representatives shall be composed of members directly chosen by the people of the Commonwealthrdquo

Like s 24 s 7 of the Constitution also uses the expression ldquodirectly chosen by the peoplerdquo and as Stephen J said in McKinlay (at 56) ldquoEach [s 7 and s 24] calls for a system of representative democracy in the sense that the Houses of the legislature are to be composed of members whom the people choose in each the method of choice is required to be that of direct choice there is to be no interposition of an electoral college between the chooser and the chosenrdquo

The petitioner contended that neither McKenzie v The Commonwealth nor Abbotto v Australian Electoral Commission can be read as dealing directly with the arguments he now seeks to advance I think the better view is that Gibbs CJ did consider these matters in McKenzie and that the decision of Dawson J in Abbotto is inconsistent with the petitionerrsquos contentions

However that may be as I said in McClure I do not accept that the provisions for above the line and below the line voting in Senate elections are contrary to s 7 of the Constitution See also McKenzie v The Commonwealth (1987) 59 ALJR 190 57 ALR 747 Abbotto v Australian Electoral Commission (1997) 71 ALJR 675 144 ALR 352 In particular l do not accept the contention that those provisions ldquoprescribe a method of electing Senators which resembles an electoral college and where Senators are indirectly chosen by the people of the Staterdquo

The petition cannot succeed It should be dismissed

8112 The second Ditchburn petition was heard and decided on the same day

82 The Ditchburn v DRO Herbert Petition

821 On 3 October Mr Donald Ditchburn an elector for the Division of Herbert in Queensland filed a petition in the Brisbane Registry of the High Court disputing the election of the Member for Herbert in Queensland In his petition Mr Ditchburn asserted his entitlement to vote at the election and asserted the following grounds for his petition (inter alia)

hellipElectors (like me) whose first preference for a minor party candidate was initially counted as their vote also had their ballot papers counted for their second third or fourth etc preference candidates and those candidates substituted by the DRO as the electorsrsquo alternative votes

As an electorrsquos vote can be ascribed to any candidate in hisher order of preference it follows that the elector must simultaneously vote for all candidates indicated on his ballot paper Under this construction if electors only vote for their first preference subsequent preferences should not be counted

Thus Section 274 of the Act has the effect of making the preferences each elector indicates pursuant to Section 240(1)(b) into multiple votes for the one vacant seat

This construction conflicts with the express and implied provisions of Section 30 of the Constitution of the Commonwealth of Australia which requires in part ldquobut in the choosing of members each elector shall vote only oncerdquo

But if Section 274 of the Act is construed as requiring the Divisional Returning Officer to ldquotransferrdquo the first preference votes of excluded candidates to opponents the DRO acts as an intermediary (or agent) in the votersrsquo choosing of members of the House of Representatives

The intervention of the DRO actually determines which of any electors preferences is finally accepted in the count of votes and thus determines which candidate the elector actually chooses

Consequently the intervention or agency of an officer of the Crown in the choosing of members means that such members are indirectly chosen by electors whose votes were transferred from excluded candidates This requirement of the Act conflicts with the first provision of Section 24 of the Constitution

ldquo24 The House of Representatives shall be composed of members directly chosen by the people of the Commonwealth rdquo

As Subsections 240(1)(b) 240(2) and 274(7) para (d) 274(7AA) 274(7AB) and 274(7AC) of the Commonwealth Electoral Act 1918 either conflict with Section 24 or with Section 30 of the Constitution of the Commonwealth (or with both) those provisions of the Act should be ultra vires Parliamentsrsquo legislative power under Section 31 and Section 51(xxxvi)

(It is not contended that MHRrsquos elected by gaining an absolute majority of first preference votes pursuant to Subsection 240(1)(a) of the Act are affected)

The facts and inferences referred to above also apply to comparable legislation with respect to the election of Senators filling the final Senate positions for each State Thus Subsection 239(1)(b) and Section 273 Subsections (13) (13AA) (13A) (13B) (13C) (14) (15) and (16) of the Commonwealth Electoral Act 1918 conflict with either Section 7 or Section 8 of the Constitution of the Commonwealth These provisions of the Act should similarly be ultra vires Sections 9 10 and 51(xxxvi) of the Constitutionhellip

822 The petitioner Mr Ditchburn asked the Court for the following orders

1 A declaration as to the validity of Subsections 240(1)(b) 240(2) and 274(7) para (d) 274(7AA) 274(7AB) and 274(7AC) of the Commonwealth Electoral Act 1918

2 An order to annul the election of the Member for Herbert declared elected by the Divisional Returning Officer for Herbert pursuant to the provisions of the Act referred to in 1 above

823 On 22 and 31 March 1999 a summons and affidavit was filed with the Court by Mr Maurice Swan of the Australian Government Solicitor on behalf of the AEC seeking orders that the AEC have leave to enter an appearance in the proceedings that the name of the respondent (DRO Herbert) be struck out and that the petition be dismissed or that proceedings be stayed on the grounds that there was no reasonable or probable cause of action or suit or that the proceeding is an abuse of the process of the Court

824 At the hearing on 22 July 1999 in Canberra before Justice Hayne of the High Court sitting as the Court of Disputed Returns Mr Gageler of counsel appeared for the AEC with Mr Geoffrey McCarthy and Mr Ditchburn represented himself on video-link

825 Mr Ditchburn did not oppose the application by the AEC to enter an appearance and leave was granted by the Court Mr Gageler for the AEC relied on the decision of the Court in Langer v The Commonwealth (1996) 186 CLR 302 where all members of the Court including Justice Dawson who otherwise dissented held section 240 of the Electoral Act valid

826 In reply the petitioner submitted that his petition was different in principle from the matters considered in Langer because his petition relied on the word ldquodirectlyrdquo appearing in section 24 of the Constitution This he submitted was not a matter raised or considered by the Court in Langer Justice Hayne listened to the petitioner at length but frequently commented that the issues being raised by the petitioner were matters of political science not constitutional validity His Honour then reserved his decision

827 Later on the same day 22 July 1999 Justice Hayne delivered his decision ordering that the petition be dismissed and that the petitioner Mr Ditchburn pay the costs of the AEC In his decision in Ditchburn v DRO Herbert (unreported) Justice Hayne said the following

On 7 December 1998 Donald Kenneth Ditchburn filed an Election Petition pursuant to Div 1 of Pt XXII of the Electoral Act (Cth) (ldquothe Actrdquo) The petition was said to concern ldquothe election for the House of Representatives seat for the Division of Herbert held on Saturday 3 October 1998rdquo It alleged that the petitioner is enrolled in the Federal Division of Herbert in the State of Queensland and it appears from other allegations in the petition that he was eligible to vote in that Division in the election held on 3 October 1998

The Australian Electoral Commission seeks leave to enter an appearance in the proceeding and to be represented and be heard It seeks an order under O 16 r 4 of the High Court Rules that the name of the respondent to the petition be struck out It also seeks an order dismissing the petition or staying proceedings on the petition on the ground either that there is no reasonable or probable cause of action or suit or that the proceeding is an abuse of the process of the Court

As was the case in the other electoral petition which was instituted by Mr Ditchburn and with which I have dealt today Ditchburn v Australian Electoral Officer for Queensland [1999] HCA no reason was offered why the Commission should not have the leave it sought (under s 359 of the Act) and accordingly leave was given for it to appear be represented and heard on the petition Again however I need form no view on whether the respondent named in the petition was ldquoimproperly joinedrdquo within the meaning of O 16 r 4 of the Rules

The petitioner seeks to contend that the system of preferential voting for candidates in House of Representatives elections is contrary to the requirements of s 24 of the Constitution that the members of that House be ldquodirectly chosen by the peoplerdquo and s 30 of the Constitution that ldquoin the choosing of members each elector shall vole only oncerdquo In particular he alleges that ss 240(1)(b) 240(2) 274(7)(d) 274(7AA) 274(7AB) and 274(7AC) of the Act are invalid and he seeks a declaration to that effect and ldquoan order to annul the election of the Member for Herbert declared elected by the Divisional Returning Officer for Herbertrdquo pursuant to these provisionshellip

In my opinion these arguments [in the petition] are not tenable Some other arguments not raised by the petition were mentioned by the petitioner in oral argument They were by and large arguments of a political rather than legal nature Even if open to the petitioner sections 355 358 they do not assist in resolving the consyitulional issues that the petitioner sought to raise

In Langer v The Commonwealth (1996) 186 CLR 302 at least five members of the Court held at 316-317 per Brennan CJ 333 per Toohey and Gaudron JJ 348-349 per Gummow J that s 240 of the Act was a valid law within ss 31 and 51(xxxvi) of the Constitution and was not inconsistent with the requirement of s 24 that the House of Representatives shall be comprised of members ldquodirectly chosen by the people of the Commonwealthrdquo See also Judd v McKeon (1926) 38 CLR 380 Faderson v Bridger (1971) 126 CLR 217 And it may well be that the other two members of the Court were of the same opinion at 323 per Dawson J 340-341 per McHugh J The argument which the petitioner seeks to advance is at least to the extent that he relies on s 24 an argument which I am bound to hold would fail Even if Langer does not decide the further point on which the petitioner seeks to rely (that under the

preferential voting system a voter votes more than once contrary to s 30) that contention is one which must fail

Prior to Federation plural voting related to property qualification was allowed in Tasmania Western Australia and Queensland Attorney-General (Cth) Ex rel McKinlay v The Commonwealth (1975) 135 CLR 1 at 19 per Barwick CJ McGinty v Western Australia (1996) 186 CLR 140 at 281-282 per Gummow J It is clear from the Debates at the 1891 Convention in Sydney that the question of plural voting was well in the minds of the members of the Constitutional Conventions from which the terms of the Constitution emerged Official Record of the Debates of the Australasian Federal Convention (Sydney) 1891 vol 1 613-617 But the plural voting then under consideration permitted a voter to cast more than one expression of his or (in South Australia and Western Australia) her choice of candidate

The preferential voting system was provided for House of Representatives elections by s 124 of the Commonwealth Electoral Act 1918 and for the Senate by s 7 of the Commonwealth Electoral Act 1919 As McHugh J noted in Langer v The Commonwealth at 342 ldquoCompulsory preferential voting does not appear to have been introduced into Australia until 1911 when it was introduced in Western Australia But optional preferential voting was used in Queensland after 1892rdquo Even so the Constitution that emerged from the Constitutional Conventions ldquodid not entrench the secret ballot compulsory voting preferential or proportional votingrdquo McGinty v Western Australia (1996) 186 CLR 140 at 283 per Gummow J All that was said (so far as presently relevant) was that the members of the House of Representatives were to be ldquodirectly chosen by the peoplerdquo section 24 that until the Parliament otherwise provides ldquothe qualification of electors of members of the House of Representatives shall be in each State that which is prescribed by the law of the Slate as the qualification of electors of the more numerous House of Parliament of the Staterdquo section 30 and that ldquoin the choosing of members each elector shall vote only oncerdquo section 30

The petitioner placed some emphasis on what was said by McHugh J in Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106 at 228-233 about ldquorepresentative governmentrdquo But as Brennan CJ pointed out in McGinty v Western Australia at 169 the expressions ldquorepresentative governmentrdquo and ldquorepresentative democracyrdquo are not found in the Constitution and although they are useful terms to describe the effect of ss 7 and 24 ldquo[i]t is logically impermissible to treat lsquorepresentative democracyrsquo as though it were contained in the Constitution to attribute to the term a meaning or content derived from sources extrinsic to the Constitution and then to invalidate a law for inconsistency with the meaning or content so attributedrdquo

The requirements that members be ldquodirectly chosenrdquo and that ldquoeach elector shall vote only oncerdquo do not preclude the Parliament from providing (as it has) for a compulsory preferential voting system Langer v The Commonwealth Soegemeier v Macklin (1985) 58 ALR 768 Under that system each elector casts but one expression of his or her choice of member in one electoral division The choice is expressed in a complex way but it remains a single expression of the will of that voter And perhaps more relevantly the voter cannot cast a vote in more than one electoral district as voters could in those Colonies that permitted plural voting related to property qualifications The voter votes only once

No doubt it is right to say as the petitioner does that the distribution of preferences requires electoral officers to undertake the process prescribed in those parts of s 274 which deal with that subject But the performance of those tasks does not mean that the member is not ldquodirectly chosenrdquo as that expression is used in s 24

The petition cannot succeed It should be dismissed

9 Implications of the Ditchburn Decisions

91 Senate Group Ticket Voting

911 As discussed in part 71 above in this submission it is not unusual for independent Senate candidates to belatedly discover generally at the time of nomination that they are not entitled to appear on the ballot paper as a group ldquoabove the linerdquo and thereby take advantage of the ticket voting system for the Senate This may give rise to some protest at the ldquofairnessrdquo of sections 211 and 211A of the Electoral Act and can result in petitions to the Court of Disputed Returns after the election on the grounds that the law is both unconstitutional and ldquounfairrdquo to independent candidates

912 In Ditchburn v AEO Qld (unreported) Justice Hayne has confirmed the decisions in McClure v AEC (1999) 73 ALJR 1086 in Abbotto v AEC (1997) 71 ALJR 675 and in McKenzie v The Commonwealth (1984) 59 ALJR 190 that the Senate group ticket voting system is not unconstitutional and that it is not for the Court to decide whether the Senate group voting system is ldquofairrdquo or ldquounfairrdquo to independent candidates

913 In Ditchburn v AEO Qld Justice Hayne dealt with the further contention that the Senate group ticket voting is contrary to section 7 of the Constitution which requires that senators be ldquodirectly chosen by the peoplerdquo His Honour said that he did not accept the contention that sections 211 and 211A of the Electoral Act ldquoprescribe a method of electing Senators which resembles an electoral college and where Senators are indirectly chosen by the people of the Staterdquo

914 Full Preferential Voting

915 In Ditchburn v DRO Herbert (unreported) it was contended that full preferential voting is contrary to section 24 of the Constitution which requires that members be ldquodirectly chosen by the peoplerdquo and section 30 of the Constitution which requires that ldquoin the choosing of members each elector shall vote only oncerdquo

916 Justice Hayne did not accept that full preferential voting under section 240 of the Electoral Act is contrary to section 24 of the Constitution which requires that members be ldquodirectly chosen by the peoplerdquo In coming to this decision His Honour relied on the decision of the High Court in Langer v The Commonwealth (1996) 186 CLR 302 In Langer the High Court held that section 240 of the Electoral Act is a valid law within sections 31 and 51(xxxvi) of the Constitution and not inconsistent with the requirements of section 24 of the Constitution Justice Hayne noted that the decision in Langer was consistent with the decisions in Judd v McKeon (1926) 38 CLR 380 and Faderson v Bridger (1971) 126 CLR 217

917 Further Justice Hayne did not accept that full preferential voting is contrary to section 30 of the Constitution which requires that ldquoin the choosing of members each elector shall vote only oncerdquo In coming to this decision Justice Hayne relied on Attorney-General (Cth) Ex rel McKinlay v The Commonwealth (1975) 135 CLR 1 McGinty v Western Australia (1996) 186 CLR 140 Langer v The Commonwealth (1996) 186 CLR 302 and Soegemeier v Macklin (1985) 58 ALR 768

918 His Honour noted that prior to Federation plural voting on the basis of property qualifications was allowed in Tasmania Western Australia and Queensland It was clear from the Debates at the 1891 Convention in Sydney that the question of plural voting was well in the minds of the members of the Constitutional Conventions from which the terms of the Constitution emerged and hence the phrase ldquoin the choosing of members each elector shall vote only oncerdquo It is notable in this context that the Constitution that emerged from the Constitutional Conventions did not entrench either the secret ballot compulsory voting preferential voting or proportional voting

919 His Honour concluded that under the full preferential voting system each elector casts but one expression of his or her choice of member in one electoral Division The choice is expressed in a complex way but it remains a single expression of the will of that voter That is at federal elections with full preferential voting the voter votes only once All that the Constitution appears to proscribe is plural voting based on property qualifications as was permitted in colonial times

10 Summary of Outcomes in the 1998 Election Petitions

bull The Court of Disputed Returns has jurisdiction to hear election petitions disputing the constitutional qualifications of candidates

bull The United Kingdom is a ldquoforeign powerrdquo under the terms of section 44(i) of the Constitution

bull Ms Heather Hill a elected candidate for the Senate in Queensland was disqualified under section 44(i) of the Constitution as a British subject at the time of her nomination

bull The Senate group voting system is a valid law of the Parliament under the terms of the Constitution including sections 7 and 24 which require that senators and members be ldquodirectly chosen by the peoplerdquo

bull It is not for the Court to decide whether or not the Senate group voting system is fair or unfair to independent candidates

bull There is no provision for class actions in election petitions and in any case electors can only dispute the elections for which they were entitled to vote

bull The Court will apply the law as provided by the Parliament within the terms of the Constitution and there is nothing to suggest that Royal Assent was not properly given to the Electoral Act and its amending Acts

bull Section 240 of the Electoral Act which provides for full preferential voting is a valid law within the terms of the Constitution including sections 7 and 24 which require that members and senators be ldquodirectly chosen by the peoplerdquo and sections 8 and 30 which require that ldquoeach elector shall vote only oncerdquo

ATTACHMENTS

Attachment 1

Sue v Hill (S1791998 Gleeson CJ 19 March 1999 unreported)

See attached

Attachment 2

Sue v Hill (1999) 73 ALJR 1016

See attached

Attachment 3

Extract from AEC submission No124 of 15 November 1993 re costs

432 During the hearing on 1 October 1993 on the question of costs Justice Gaudron made a number of observations on the ease with which election petitions which may have no legal merit can be lodged with the Court of Disputed Returns under the current provisions of the Commonwealth Electoral Act 1918 For example on page 54 of the transcript Justice Gaudron said the following

The Act is by no means of model of clarity as to who can bring petitions it sets it up so that a person can come without the benefit of legal advice which might deflect it In fact it discourages positively prohibits legal representation without leave so that the Act is virtually inviting people to bring petitions which have not had the benefit of legal analysis

433 Her Honour then appeared to agree with the proposition of Mr Gageler for the Commonwealth that whilst the $100 security for costs required under section 356 of the Act in order to lodge a petition may have been a deterrent to vexatious or frivolous petitioners when it was first legislated in 1902 (when it was 50 pounds) it can hardly be regarded as a meaningful deterrent these days

434 In discussing with Mr Gageler the scheme of the Act which appears to encourage unimpeded access to the Court of Disputed Returns by any and all petitioners Justice Gaudron said at page 55 of the transcript

Virtually unimpeded access and as you tell me five out of six [of the petitions] have failed One well knows that some of the grounds that have been advanced in these petitions - and I put Mr Hudsons to one side - have been grounds that one would think would not have survived legal advice

435 In reference to section 370 of the Act which provides that no party to the petition shall except by consent of all parties or by leave of the Court be represented by counsel or solicitor [and] in no case shall more than one counsel or solicitor appear on behalf of any party Justice Gaudron went on to say

But very rarely do you have a provision such as this - you do in some Acts but not commonly - no legal representation except by leave So what you are doing is you are in fact encouraging people to come to the Court with arguments that do not necessarily have a basis in law

436 And finally on page 58 of the transcript Justice Gaudron said

I was hoping maybe that the legislature might see fit to do something with respect to the provisions as they stand It is by no means a model of clarity is it that part of the Act

437 These comments from the Bench are directed to petitions that ldquowould not have survived legal advicerdquo that is vexatious andor frivolous petitions and not to the Hudson petition in particular as is obvious from Justice Gaudronrsquos comment that the ease of access to the Court for petitioners of limited means such as Mr Hudson is ldquocommendablerdquo (see paragraph 427 above)

438 If any review of the provisions of the Act relating to costs and legal representation were to be undertaken it would need to be in the context of the following considerations

439 For the average petitioner it costs a total of $900 in set fees and charges to lodge a petition made up of the $100 deposit as security for costs under section 356 of the Commonwealth Electoral Act 1918 and the $300 filing fee and the $500 hearing fee under regulations 4(1) and 5(1) respectively of the High Court of Australia (Fees) Regulations If a petitioner can provide a health care card or a health benefit card or provide other reasons acceptable to the High Court Registry that indicate financial constraints then the High Court Regulations allow the $800 High Court fees to be waived There is no waiver under the Commonwealth Electoral Act 1918 for the $100 deposit as security for costs

4310 In addition to these set fees and the deposit under Order 68 rule 3 of the High Court Rules forthwith after filing a petition the petitioner must arrange for the petition to be published in the Commonwealth Gazette and the relevant State Gazette and in the case of an election for the House of Representatives the petitioner must publish a notice giving details of the petition in a newspaper circulating in the relevant electoral Division Further under Order 68 rule 5 of the Rules the petitioner must 28 days after the filing of the petition serve a copy of the petition upon every person whose election or return is disputed by the petition These requirements under the High Court Rules for publication and service can clearly add up to a considerable financial burden to the petitioner

4311 The Commission has no difficulty with the fees service and advertising requirements of the High Court Rules in so far as they apply to petitions disputing elections The Commission does however agree with Justice Gaudron that the provisions in the Commonwealth Electoral Act 1918 relating to costs and legal representation are dated and inconsistent

4312 The history of the introduction in 1902 to 1905 of the provisions of the Commonwealth Electoral Act 1918 relating to costs and legal representation in the Court of Disputed Returns will not be canvassed in detail in this Submission However it is worth noting that the two Houses of Parliament were divided at that time over whether to legislate for a non-judicial parliamentary Elections and Qualifications Committee or a Court of Disputed Returns with full judicial powers to settle election disputes The primary cause of concern was the high cost of legal fees for respondents required to defend their election before a court against wealthy and possibly vexatious petitioners

4313 In the outcome a Court of Disputed Returns was agreed upon as being more impartial in the settling of election disputes than a Parliamentary committee However as a trade-off a provision was inserted in the Act limiting legal representation in order to protect elected parliamentarians from the costs of vexatious challenges Section 370 of the Commonwealth Electoral Act 1918 which provides that except by consent of all parties or by leave of the Court no party shall be represented by counsel or solicitor was therefore inserted by section 57 of the Commonwealth Electoral Act 1905

4314 As a corollary the deposit to be paid by the petitioner as security for costs was held at a low level in the expectation that court costs for the respondents would be contained by the limitation on legal representation The further trade-off was that by holding the deposit to a low level access to the court was not limited for the impecunious petitioner with a genuine dispute Section 195 of the Commonwealth

Electoral Act 1902 provided that the deposit for security for costs should be 50 pounds That amount has not substantially changed in the intervening 90 years and now stands at $100 in section 356 of the Act

4315 Despite the concerns of the early legislators to protect elected parliamentarians from wealthy and vexatious petitioners modern day realities are that respondents will rarely appear without legal representation and more often than not will hire a Queens Counsel whose fee is guaranteed from party or other sympathetic resources It is also unlikely that the court would decline to consent to such representation if there were to be any objection from the petitioner This suggests that section 370 of the Act limiting legal representation no longer serves any practical purpose

4316 The provision does not appear in any way to either advantage or disadvantage the petitioner The impecunious petitioner by obtaining waivers on fees and by appearing without legal representation has ready access to the court The problem that Justice Gaudron has highlighted is that petitioners are encouraged by the apparent limitation on legal representation to bring disputes to court which might never have survived proper legal advice

4317 If section 370 were to be deleted from the legislation then the logical nexus between that provision and section 356 which sets a low $100 as the petitionerrsquos deposit for security for costs would fall away However there are other provisions relating to costs in the Act sections 360 (1)(ix) 360(1)(4) 372 and 373 for example which would need to be considered as part of any general review of the issue of costs and legal representation that the Committee might recommend

Attachment 4

Extract from AEC submission No 96 of 23 October 1996 on Federal Court

61 During the course of the proceedings it appeared as if evidentiary matters might have to be resolved in the petition by the examination of declaration envelopes and the calling of witnesses This could have involved up to 1594 individual investigations The High Court sitting as the Court of Disputed Returns has made it clear on at least one recent occasion (the Webster v Deahm petition in 1993) that it is not amendable to dealing with such a load and would if such evidentiary matters were to be pressed refer the petition to the relevant State Supreme Court This option is available to the Court under section 354 of the CEA

62 However it became clear during proceedings in this petition that there was a preference by the Bench for the questions of law to be resolved by the High Court with only questions of evidence being determined by the Supreme Court rather than the whole of the petition being heard and determined by the Supreme Court It was also the preferred position of the AEC that if a petition were to be split and any questions of evidence were to be remitted to the Supreme Court then the evidentiary determinations should be sent back to the High Court for final decision on the appropriate relief

63 It is the view of the AEC that the High Court and not a Supreme Court of a State should make final determinations on the proper outcome of challenges to a federal election for example whether or not a federal election should be voided The interpretation of section 354 of the CEA by the Chief Justice on 15 August 1996 means that it is not possible for the evidentiary and determinative matters in a petition to be ldquosplitrdquo between the High Court and a Supreme Court under the legislation as it currently standshellip

73 The Snowdon petition also gave rise to a procedural issue about the ldquosplittingrdquo of petitions and the remitting of questions of evidence from the High Court to inferior courts

The AEC recommends that section 354 of the CEA be amended to enable the High Court to remit aspects of a petition to a Supreme Court but so that the High Court retains final jurisdiction on relief

Attachment 5

McClure v AEC (1999) 73 ALJR 1086

See attached

8 Proceedings in the Ditchburn Petitions

81 The Ditchburn v AEO Qld Petition

811 On 3 October Mr Donald Ditchburn an elector for the Division of Herbert in Queensland filed a petition in the Brisbane Registry of the High Court disputing the election of all Senators elected at the half-Senate election for the State of Queensland In his petition Mr Ditchburn asserted his entitlement to vote at the election and asserted the following grounds for his petition (inter alia)

While sections 211 and 211A carefully avoid using the words ldquochooserdquo ldquochoicerdquo or ldquochosenrdquo it is an unavoidable pre-requisite of lodging statements specifying orders of preference that candidate or party officials choose the orders of preference given in the statements lodged with the Australian Electoral Officer

Where voters mark their Senate ballot papers ldquoabove the linerdquo ie in accordance with subsections 239(2) or (3) they select a political party or group which has lodged a group voting ticket pursuant to section 211 or section 211A

Section 272 creates a statutory fiction by ldquodeemingrdquo those ballot papers to have been marked according to an order of preference specified by that political party or group of candidates

No Senator is directly chosen by people who vote ldquoabove the linerdquo (refer to Senate ballot paper) ndash voters merely select the political party or group of candidates whose previously chosen order of preference is then attributed to the voter by the statutory fiction created under section 272

Consequently the provisions of the Commonwealth Electoral Act 1918 referred to above prescribe a method of electing Senators which resembles an electoral college and where Senators are indirectly chosen by the people of the Statehelliphellip

Hence those provisions conflict with section 7 of the Constitution of the Commonwealth and are therefore ultra vires the powers of Federal Parliament under sections 8 and 51(xxxvi) of the Constitution

The legislation also conflicts with the findings of the High Court in Attorney-General of Australia (ex re McKinlay) v Commonwealth (1975) 135 CLR 1 per Gibbs J at p 44 Stephen J at p 56 Mason J at p 61 and Murphy J at p 68

Of note is the decision of Gibbs CJ in McKenzie v Commonwealth (1984) 59 ALJR 190 which was limited to the arguments presented in that case and did not allude to whether Senators were directly or indirectly chosen by electors It is questionable whether this decision conflicts with the findings of the full bench of the High Court referred to in the preceding paragraph

812 The petitioner Mr Ditchburn asked the Court for the following orders

1 A declaration as to the validity of sections 211 211A and subsections 239(2) 239(3) and 273(5) paragraphs (c) (d) and (f) of the Commonwealth Electoral Act 1918

2 An order to annul the election of any Senator declared elected by the Australian Electoral Officer for Queensland pursuant to sections 211 211A 272 and subsections 239(2) 239(3) and 273(5) paragraphs (c) (d) and (f) of the Commonwealth Electoral Act 1918

813 On 22 and 31 March 1999 a summons and affidavit was filed with the Court by Mr Maurice Swan of the Australian Government Solicitor on behalf of the AEC seeking orders that the AEC have leave to enter an appearance in the proceedings that the name of the respondent (AEO Qld) be struck out and that the petition be dismissed or that proceedings be stayed on the grounds that there was no reasonable or probable cause of action or suit or that the proceeding is an abuse of the process of the Court

814 At the hearing on 22 July 1999 in Canberra before Justice Hayne of the High Court sitting as the Court of Disputed Returns Mr Gageler of counsel appeared for the AEC with Mr Geoffrey McCarthy and Mr Ditchburn represented himself on video-link

815 Mr Ditchburn did not opposed the application by the AEC to enter an appearance and leave was granted by the Court Mr Gageler for the AEC relied on the previous decisions of the Court in McKenzie v The Commonwealth (1984) 59 ALJR 190 Abbotto v AEC (1997) 71 ALJR 675 Soegemeier v Macklin (1985) 58 ALR 768 and most recently McClure v AEC (1999) 73 ALJR 1086

816 In the course of interchange with Justice Hayne the petitioner agreed that basis of his argument was that ldquoabove the linerdquo voting amounts to electors choosing a party by means of a group voting ticket rather than direct election of Senators The petitioner submitted that this system contravened section 7 of the Constitution which requires that the Senate be composed of Senators for each State directly chosen by the people of the State The petitioner referred to and relied upon sections 8 9 and 51(xxxvi) of the Constitution and submitted that the effect of group voting tickets provided for under sections 211 and 211A of the Electoral Act was to establish an ldquoelectoral collegerdquo the members of which are the party officials or group candidates listed on the ticket The petitioner submitted that group ticket voting ldquoabove the linerdquo means voting for a college rather than individual candidates

817 In support of his argument the petitioner also referred to the entitlement of parties under sections 211(2)(3) and 211A(2)(3) to lodge with the AEC a group ticket voting statement indicating two or three different orders of preference for the election of candidates The petitioner stated rightly that where a statement is lodged indicating two or three different ways in which a party directs preferences to be allocated the returning officer randomly distributes ballot papers into two or three equal piles (as the case may be)

818 For this reason any elector who voted ldquoabove the linerdquo by reference to a statement indicating two or three different orders for distribution of preferences had no control over how his or her preferences were distributed because the elector did not control on which ldquopilerdquo his or her ballot paper was placed It was submitted by the petitioner that the intervention of the returning officer when distributing the ballot papers contravened the requirement that Senators be chosen directly by the people

819 In the course of the interchange between Justice Hayne and the petitioner it became clear that His Honour was not attracted by any of the arguments put by the petitioner Relying upon earlier decisions of the Court Justice Hayne expressed his view that Parliamentrsquos provision for a complex system of Senate voting does not contravene section 7 of the Constitution It only addresses the manner in which direct voting is conducted His Honour rejected the proposition that the group voting ticket system interposes an electoral college between the choosers and the chosen

8110 The petitioner also sought to rely on section 8 of the Constitution despite express findings in McKenzie and Soegemeier that section 8 had no bearing on the validity of the group ticket voting provisions of the Electoral Act On several occasions Justice Hayne commented that the matters raised by the petitioner were more in the realm of political science than the legal question before the Court namely whether the group voting ticket system contravened the Constitution After some two hours of submissions Justice Hayne then reserved his decision

8111 Later on the same day 22 July Justice Hayne delivered his decision ordering that the petition be dismissed and that the petitioner Mr Ditchburn pay the costs of the respondent the AEC In his decision in Ditchburn v AEO Qld (unreported) Justice Hayne said the following

On 30 November 1998 Donald Kenneth Ditchburn filed an Election Petition pursuant to Div 1 of Pt XXII of the Electoral Act (Cth) (ldquothe Actrdquo) The petition was said to ldquo[concern] the election for Senators held in the State of Queensland held on Saturday 3 October 1998rdquohellip

The petition named as respondent the ldquoAustralian Electoral Officer for Queenslandrdquo The Australian Electoral Commission (ldquothe Commissionrdquo) sought leave to enter an appearance in the proceeding and to be represented and be heard and it sought an order under O 16 r 4 of the High Court Rules that the name of the respondent be struck out as improperly joined It has also sought an order that the petition be dismissed on the ground that it does

not set out facts which would justify any relief under the Act or in the alternative that it be stayed on the ground either that there is no reasonable or probable cause of action or suit or that the proceeding is an abuse of the process of the Court

Section 359 of he Act provides ldquoThe Electoral Commission shall be entitled by leave of the Court of Disputed Returns to enter an appearance in any proceedings in which the validity of any election or return is disputed and to be represented and heard thereon and in such case shall be deemed to be a party respondent to the petitionrdquo

No reason was offered why the Commission should not have the leave it seeks and accordingly leave was granted Because I consider that the petition cannot succeed and should be dismissed I need form no view on whether the respondent named in the petition was ldquoimproperly joinedrdquo within the meaning of O 16 r 4 of the Rules

The central complaint of the petitioner relates to what has come to be known as the ldquoabove the linerdquo and ldquobelow the linerdquo voting or ldquogroup votingrdquo system in Senate elections That is dealt with in ss 211 211A 239 and 272 of the Act and finds reflection in the provisions of s 273 governing scrutiny of votes in Senate electionshellip

Section 211 of the Act provides (in effect) that where the names of candidates nominated in a Senate election are included in a group the candidates may lodge a written statement that they wish voters in the election to indicate their preferences in relation to all the candidates in the election in an order (or any of up to three different orders) specified in the statement being an order that gives preferences to the candidates lodging the statement before any other candidate Section 211A of the Act makes like provision for candidates who are Senators or if there has been a dissolution of the Senate were Senators immediately before the dissolution and who are not members of a group There is no like provision for other candidates not part of a group

The constitutional validity of provisions like s 211 has twice been considered shyin McKenzie v Commonwealth (1984) 59 ALJR 190 57 ALR 747 and in Abbotto v Australian Electoral Commission 72 (1997) 71 ALJR 675 144 ALR 352 At the time of McKenzie the Act was cast in slightly different terms and did not contain s 211A Gibbs CJ rejected a submission that the group voting system then provided for the election of Senators was contrary to s 7 or s 16 of the Constitution shy

Section 7 provides (so far as relevant) ldquoThe Senate shall be composed of senators for each Sate directly chosen by the people of the State voting until the Parliament otherwise provides as one electoraterdquo

Section 16 provides ldquoThe qualifications of a senator shall be the same as those of a member of the House of Representativesrdquo

- and held that the provisions then in force did not lsquoso [offend] democratic principles as to render the sections beyond the power of the Parliament to enact (1984) 59 ALJR 190 at 191 57 ALIl 747 at 749 In Abbotto Dawson J held that there was no substance to the contention that the voting system provided for by ss 211 and 211A contravened s 10 of the Constitution

Section 10 provides ldquountil the Parliament otherwise provides but subject to this Constitution the laws in force in each State for the time being relating to elections for the more numerous House of the Parliament of tile State shall as nearly as practicable apply to elections of senators for the Staterdquo

The present petition suggests that the provisions of the Act dealing with above the line and below the line voting conflict with what was held by the Court in Attorney-General (Cth) Ex rel McKinlay v The Commonwealth (1975) 135 CLR 1 Particular reference was made to those parts of the reasons of Gibbs J (at 44) Stephen J (at 56) Mason J (at 61) and Murphy J (at 68) in which their Honours consider what is meant in s 24 of the Constitution when it says that ldquothe House of Representatives shall be composed of members directly chosen by the people of the Commonwealthrdquo

Like s 24 s 7 of the Constitution also uses the expression ldquodirectly chosen by the peoplerdquo and as Stephen J said in McKinlay (at 56) ldquoEach [s 7 and s 24] calls for a system of representative democracy in the sense that the Houses of the legislature are to be composed of members whom the people choose in each the method of choice is required to be that of direct choice there is to be no interposition of an electoral college between the chooser and the chosenrdquo

The petitioner contended that neither McKenzie v The Commonwealth nor Abbotto v Australian Electoral Commission can be read as dealing directly with the arguments he now seeks to advance I think the better view is that Gibbs CJ did consider these matters in McKenzie and that the decision of Dawson J in Abbotto is inconsistent with the petitionerrsquos contentions

However that may be as I said in McClure I do not accept that the provisions for above the line and below the line voting in Senate elections are contrary to s 7 of the Constitution See also McKenzie v The Commonwealth (1987) 59 ALJR 190 57 ALR 747 Abbotto v Australian Electoral Commission (1997) 71 ALJR 675 144 ALR 352 In particular l do not accept the contention that those provisions ldquoprescribe a method of electing Senators which resembles an electoral college and where Senators are indirectly chosen by the people of the Staterdquo

The petition cannot succeed It should be dismissed

8112 The second Ditchburn petition was heard and decided on the same day

82 The Ditchburn v DRO Herbert Petition

821 On 3 October Mr Donald Ditchburn an elector for the Division of Herbert in Queensland filed a petition in the Brisbane Registry of the High Court disputing the election of the Member for Herbert in Queensland In his petition Mr Ditchburn asserted his entitlement to vote at the election and asserted the following grounds for his petition (inter alia)

hellipElectors (like me) whose first preference for a minor party candidate was initially counted as their vote also had their ballot papers counted for their second third or fourth etc preference candidates and those candidates substituted by the DRO as the electorsrsquo alternative votes

As an electorrsquos vote can be ascribed to any candidate in hisher order of preference it follows that the elector must simultaneously vote for all candidates indicated on his ballot paper Under this construction if electors only vote for their first preference subsequent preferences should not be counted

Thus Section 274 of the Act has the effect of making the preferences each elector indicates pursuant to Section 240(1)(b) into multiple votes for the one vacant seat

This construction conflicts with the express and implied provisions of Section 30 of the Constitution of the Commonwealth of Australia which requires in part ldquobut in the choosing of members each elector shall vote only oncerdquo

But if Section 274 of the Act is construed as requiring the Divisional Returning Officer to ldquotransferrdquo the first preference votes of excluded candidates to opponents the DRO acts as an intermediary (or agent) in the votersrsquo choosing of members of the House of Representatives

The intervention of the DRO actually determines which of any electors preferences is finally accepted in the count of votes and thus determines which candidate the elector actually chooses

Consequently the intervention or agency of an officer of the Crown in the choosing of members means that such members are indirectly chosen by electors whose votes were transferred from excluded candidates This requirement of the Act conflicts with the first provision of Section 24 of the Constitution

ldquo24 The House of Representatives shall be composed of members directly chosen by the people of the Commonwealth rdquo

As Subsections 240(1)(b) 240(2) and 274(7) para (d) 274(7AA) 274(7AB) and 274(7AC) of the Commonwealth Electoral Act 1918 either conflict with Section 24 or with Section 30 of the Constitution of the Commonwealth (or with both) those provisions of the Act should be ultra vires Parliamentsrsquo legislative power under Section 31 and Section 51(xxxvi)

(It is not contended that MHRrsquos elected by gaining an absolute majority of first preference votes pursuant to Subsection 240(1)(a) of the Act are affected)

The facts and inferences referred to above also apply to comparable legislation with respect to the election of Senators filling the final Senate positions for each State Thus Subsection 239(1)(b) and Section 273 Subsections (13) (13AA) (13A) (13B) (13C) (14) (15) and (16) of the Commonwealth Electoral Act 1918 conflict with either Section 7 or Section 8 of the Constitution of the Commonwealth These provisions of the Act should similarly be ultra vires Sections 9 10 and 51(xxxvi) of the Constitutionhellip

822 The petitioner Mr Ditchburn asked the Court for the following orders

1 A declaration as to the validity of Subsections 240(1)(b) 240(2) and 274(7) para (d) 274(7AA) 274(7AB) and 274(7AC) of the Commonwealth Electoral Act 1918

2 An order to annul the election of the Member for Herbert declared elected by the Divisional Returning Officer for Herbert pursuant to the provisions of the Act referred to in 1 above

823 On 22 and 31 March 1999 a summons and affidavit was filed with the Court by Mr Maurice Swan of the Australian Government Solicitor on behalf of the AEC seeking orders that the AEC have leave to enter an appearance in the proceedings that the name of the respondent (DRO Herbert) be struck out and that the petition be dismissed or that proceedings be stayed on the grounds that there was no reasonable or probable cause of action or suit or that the proceeding is an abuse of the process of the Court

824 At the hearing on 22 July 1999 in Canberra before Justice Hayne of the High Court sitting as the Court of Disputed Returns Mr Gageler of counsel appeared for the AEC with Mr Geoffrey McCarthy and Mr Ditchburn represented himself on video-link

825 Mr Ditchburn did not oppose the application by the AEC to enter an appearance and leave was granted by the Court Mr Gageler for the AEC relied on the decision of the Court in Langer v The Commonwealth (1996) 186 CLR 302 where all members of the Court including Justice Dawson who otherwise dissented held section 240 of the Electoral Act valid

826 In reply the petitioner submitted that his petition was different in principle from the matters considered in Langer because his petition relied on the word ldquodirectlyrdquo appearing in section 24 of the Constitution This he submitted was not a matter raised or considered by the Court in Langer Justice Hayne listened to the petitioner at length but frequently commented that the issues being raised by the petitioner were matters of political science not constitutional validity His Honour then reserved his decision

827 Later on the same day 22 July 1999 Justice Hayne delivered his decision ordering that the petition be dismissed and that the petitioner Mr Ditchburn pay the costs of the AEC In his decision in Ditchburn v DRO Herbert (unreported) Justice Hayne said the following

On 7 December 1998 Donald Kenneth Ditchburn filed an Election Petition pursuant to Div 1 of Pt XXII of the Electoral Act (Cth) (ldquothe Actrdquo) The petition was said to concern ldquothe election for the House of Representatives seat for the Division of Herbert held on Saturday 3 October 1998rdquo It alleged that the petitioner is enrolled in the Federal Division of Herbert in the State of Queensland and it appears from other allegations in the petition that he was eligible to vote in that Division in the election held on 3 October 1998

The Australian Electoral Commission seeks leave to enter an appearance in the proceeding and to be represented and be heard It seeks an order under O 16 r 4 of the High Court Rules that the name of the respondent to the petition be struck out It also seeks an order dismissing the petition or staying proceedings on the petition on the ground either that there is no reasonable or probable cause of action or suit or that the proceeding is an abuse of the process of the Court

As was the case in the other electoral petition which was instituted by Mr Ditchburn and with which I have dealt today Ditchburn v Australian Electoral Officer for Queensland [1999] HCA no reason was offered why the Commission should not have the leave it sought (under s 359 of the Act) and accordingly leave was given for it to appear be represented and heard on the petition Again however I need form no view on whether the respondent named in the petition was ldquoimproperly joinedrdquo within the meaning of O 16 r 4 of the Rules

The petitioner seeks to contend that the system of preferential voting for candidates in House of Representatives elections is contrary to the requirements of s 24 of the Constitution that the members of that House be ldquodirectly chosen by the peoplerdquo and s 30 of the Constitution that ldquoin the choosing of members each elector shall vole only oncerdquo In particular he alleges that ss 240(1)(b) 240(2) 274(7)(d) 274(7AA) 274(7AB) and 274(7AC) of the Act are invalid and he seeks a declaration to that effect and ldquoan order to annul the election of the Member for Herbert declared elected by the Divisional Returning Officer for Herbertrdquo pursuant to these provisionshellip

In my opinion these arguments [in the petition] are not tenable Some other arguments not raised by the petition were mentioned by the petitioner in oral argument They were by and large arguments of a political rather than legal nature Even if open to the petitioner sections 355 358 they do not assist in resolving the consyitulional issues that the petitioner sought to raise

In Langer v The Commonwealth (1996) 186 CLR 302 at least five members of the Court held at 316-317 per Brennan CJ 333 per Toohey and Gaudron JJ 348-349 per Gummow J that s 240 of the Act was a valid law within ss 31 and 51(xxxvi) of the Constitution and was not inconsistent with the requirement of s 24 that the House of Representatives shall be comprised of members ldquodirectly chosen by the people of the Commonwealthrdquo See also Judd v McKeon (1926) 38 CLR 380 Faderson v Bridger (1971) 126 CLR 217 And it may well be that the other two members of the Court were of the same opinion at 323 per Dawson J 340-341 per McHugh J The argument which the petitioner seeks to advance is at least to the extent that he relies on s 24 an argument which I am bound to hold would fail Even if Langer does not decide the further point on which the petitioner seeks to rely (that under the

preferential voting system a voter votes more than once contrary to s 30) that contention is one which must fail

Prior to Federation plural voting related to property qualification was allowed in Tasmania Western Australia and Queensland Attorney-General (Cth) Ex rel McKinlay v The Commonwealth (1975) 135 CLR 1 at 19 per Barwick CJ McGinty v Western Australia (1996) 186 CLR 140 at 281-282 per Gummow J It is clear from the Debates at the 1891 Convention in Sydney that the question of plural voting was well in the minds of the members of the Constitutional Conventions from which the terms of the Constitution emerged Official Record of the Debates of the Australasian Federal Convention (Sydney) 1891 vol 1 613-617 But the plural voting then under consideration permitted a voter to cast more than one expression of his or (in South Australia and Western Australia) her choice of candidate

The preferential voting system was provided for House of Representatives elections by s 124 of the Commonwealth Electoral Act 1918 and for the Senate by s 7 of the Commonwealth Electoral Act 1919 As McHugh J noted in Langer v The Commonwealth at 342 ldquoCompulsory preferential voting does not appear to have been introduced into Australia until 1911 when it was introduced in Western Australia But optional preferential voting was used in Queensland after 1892rdquo Even so the Constitution that emerged from the Constitutional Conventions ldquodid not entrench the secret ballot compulsory voting preferential or proportional votingrdquo McGinty v Western Australia (1996) 186 CLR 140 at 283 per Gummow J All that was said (so far as presently relevant) was that the members of the House of Representatives were to be ldquodirectly chosen by the peoplerdquo section 24 that until the Parliament otherwise provides ldquothe qualification of electors of members of the House of Representatives shall be in each State that which is prescribed by the law of the Slate as the qualification of electors of the more numerous House of Parliament of the Staterdquo section 30 and that ldquoin the choosing of members each elector shall vote only oncerdquo section 30

The petitioner placed some emphasis on what was said by McHugh J in Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106 at 228-233 about ldquorepresentative governmentrdquo But as Brennan CJ pointed out in McGinty v Western Australia at 169 the expressions ldquorepresentative governmentrdquo and ldquorepresentative democracyrdquo are not found in the Constitution and although they are useful terms to describe the effect of ss 7 and 24 ldquo[i]t is logically impermissible to treat lsquorepresentative democracyrsquo as though it were contained in the Constitution to attribute to the term a meaning or content derived from sources extrinsic to the Constitution and then to invalidate a law for inconsistency with the meaning or content so attributedrdquo

The requirements that members be ldquodirectly chosenrdquo and that ldquoeach elector shall vote only oncerdquo do not preclude the Parliament from providing (as it has) for a compulsory preferential voting system Langer v The Commonwealth Soegemeier v Macklin (1985) 58 ALR 768 Under that system each elector casts but one expression of his or her choice of member in one electoral division The choice is expressed in a complex way but it remains a single expression of the will of that voter And perhaps more relevantly the voter cannot cast a vote in more than one electoral district as voters could in those Colonies that permitted plural voting related to property qualifications The voter votes only once

No doubt it is right to say as the petitioner does that the distribution of preferences requires electoral officers to undertake the process prescribed in those parts of s 274 which deal with that subject But the performance of those tasks does not mean that the member is not ldquodirectly chosenrdquo as that expression is used in s 24

The petition cannot succeed It should be dismissed

9 Implications of the Ditchburn Decisions

91 Senate Group Ticket Voting

911 As discussed in part 71 above in this submission it is not unusual for independent Senate candidates to belatedly discover generally at the time of nomination that they are not entitled to appear on the ballot paper as a group ldquoabove the linerdquo and thereby take advantage of the ticket voting system for the Senate This may give rise to some protest at the ldquofairnessrdquo of sections 211 and 211A of the Electoral Act and can result in petitions to the Court of Disputed Returns after the election on the grounds that the law is both unconstitutional and ldquounfairrdquo to independent candidates

912 In Ditchburn v AEO Qld (unreported) Justice Hayne has confirmed the decisions in McClure v AEC (1999) 73 ALJR 1086 in Abbotto v AEC (1997) 71 ALJR 675 and in McKenzie v The Commonwealth (1984) 59 ALJR 190 that the Senate group ticket voting system is not unconstitutional and that it is not for the Court to decide whether the Senate group voting system is ldquofairrdquo or ldquounfairrdquo to independent candidates

913 In Ditchburn v AEO Qld Justice Hayne dealt with the further contention that the Senate group ticket voting is contrary to section 7 of the Constitution which requires that senators be ldquodirectly chosen by the peoplerdquo His Honour said that he did not accept the contention that sections 211 and 211A of the Electoral Act ldquoprescribe a method of electing Senators which resembles an electoral college and where Senators are indirectly chosen by the people of the Staterdquo

914 Full Preferential Voting

915 In Ditchburn v DRO Herbert (unreported) it was contended that full preferential voting is contrary to section 24 of the Constitution which requires that members be ldquodirectly chosen by the peoplerdquo and section 30 of the Constitution which requires that ldquoin the choosing of members each elector shall vote only oncerdquo

916 Justice Hayne did not accept that full preferential voting under section 240 of the Electoral Act is contrary to section 24 of the Constitution which requires that members be ldquodirectly chosen by the peoplerdquo In coming to this decision His Honour relied on the decision of the High Court in Langer v The Commonwealth (1996) 186 CLR 302 In Langer the High Court held that section 240 of the Electoral Act is a valid law within sections 31 and 51(xxxvi) of the Constitution and not inconsistent with the requirements of section 24 of the Constitution Justice Hayne noted that the decision in Langer was consistent with the decisions in Judd v McKeon (1926) 38 CLR 380 and Faderson v Bridger (1971) 126 CLR 217

917 Further Justice Hayne did not accept that full preferential voting is contrary to section 30 of the Constitution which requires that ldquoin the choosing of members each elector shall vote only oncerdquo In coming to this decision Justice Hayne relied on Attorney-General (Cth) Ex rel McKinlay v The Commonwealth (1975) 135 CLR 1 McGinty v Western Australia (1996) 186 CLR 140 Langer v The Commonwealth (1996) 186 CLR 302 and Soegemeier v Macklin (1985) 58 ALR 768

918 His Honour noted that prior to Federation plural voting on the basis of property qualifications was allowed in Tasmania Western Australia and Queensland It was clear from the Debates at the 1891 Convention in Sydney that the question of plural voting was well in the minds of the members of the Constitutional Conventions from which the terms of the Constitution emerged and hence the phrase ldquoin the choosing of members each elector shall vote only oncerdquo It is notable in this context that the Constitution that emerged from the Constitutional Conventions did not entrench either the secret ballot compulsory voting preferential voting or proportional voting

919 His Honour concluded that under the full preferential voting system each elector casts but one expression of his or her choice of member in one electoral Division The choice is expressed in a complex way but it remains a single expression of the will of that voter That is at federal elections with full preferential voting the voter votes only once All that the Constitution appears to proscribe is plural voting based on property qualifications as was permitted in colonial times

10 Summary of Outcomes in the 1998 Election Petitions

bull The Court of Disputed Returns has jurisdiction to hear election petitions disputing the constitutional qualifications of candidates

bull The United Kingdom is a ldquoforeign powerrdquo under the terms of section 44(i) of the Constitution

bull Ms Heather Hill a elected candidate for the Senate in Queensland was disqualified under section 44(i) of the Constitution as a British subject at the time of her nomination

bull The Senate group voting system is a valid law of the Parliament under the terms of the Constitution including sections 7 and 24 which require that senators and members be ldquodirectly chosen by the peoplerdquo

bull It is not for the Court to decide whether or not the Senate group voting system is fair or unfair to independent candidates

bull There is no provision for class actions in election petitions and in any case electors can only dispute the elections for which they were entitled to vote

bull The Court will apply the law as provided by the Parliament within the terms of the Constitution and there is nothing to suggest that Royal Assent was not properly given to the Electoral Act and its amending Acts

bull Section 240 of the Electoral Act which provides for full preferential voting is a valid law within the terms of the Constitution including sections 7 and 24 which require that members and senators be ldquodirectly chosen by the peoplerdquo and sections 8 and 30 which require that ldquoeach elector shall vote only oncerdquo

ATTACHMENTS

Attachment 1

Sue v Hill (S1791998 Gleeson CJ 19 March 1999 unreported)

See attached

Attachment 2

Sue v Hill (1999) 73 ALJR 1016

See attached

Attachment 3

Extract from AEC submission No124 of 15 November 1993 re costs

432 During the hearing on 1 October 1993 on the question of costs Justice Gaudron made a number of observations on the ease with which election petitions which may have no legal merit can be lodged with the Court of Disputed Returns under the current provisions of the Commonwealth Electoral Act 1918 For example on page 54 of the transcript Justice Gaudron said the following

The Act is by no means of model of clarity as to who can bring petitions it sets it up so that a person can come without the benefit of legal advice which might deflect it In fact it discourages positively prohibits legal representation without leave so that the Act is virtually inviting people to bring petitions which have not had the benefit of legal analysis

433 Her Honour then appeared to agree with the proposition of Mr Gageler for the Commonwealth that whilst the $100 security for costs required under section 356 of the Act in order to lodge a petition may have been a deterrent to vexatious or frivolous petitioners when it was first legislated in 1902 (when it was 50 pounds) it can hardly be regarded as a meaningful deterrent these days

434 In discussing with Mr Gageler the scheme of the Act which appears to encourage unimpeded access to the Court of Disputed Returns by any and all petitioners Justice Gaudron said at page 55 of the transcript

Virtually unimpeded access and as you tell me five out of six [of the petitions] have failed One well knows that some of the grounds that have been advanced in these petitions - and I put Mr Hudsons to one side - have been grounds that one would think would not have survived legal advice

435 In reference to section 370 of the Act which provides that no party to the petition shall except by consent of all parties or by leave of the Court be represented by counsel or solicitor [and] in no case shall more than one counsel or solicitor appear on behalf of any party Justice Gaudron went on to say

But very rarely do you have a provision such as this - you do in some Acts but not commonly - no legal representation except by leave So what you are doing is you are in fact encouraging people to come to the Court with arguments that do not necessarily have a basis in law

436 And finally on page 58 of the transcript Justice Gaudron said

I was hoping maybe that the legislature might see fit to do something with respect to the provisions as they stand It is by no means a model of clarity is it that part of the Act

437 These comments from the Bench are directed to petitions that ldquowould not have survived legal advicerdquo that is vexatious andor frivolous petitions and not to the Hudson petition in particular as is obvious from Justice Gaudronrsquos comment that the ease of access to the Court for petitioners of limited means such as Mr Hudson is ldquocommendablerdquo (see paragraph 427 above)

438 If any review of the provisions of the Act relating to costs and legal representation were to be undertaken it would need to be in the context of the following considerations

439 For the average petitioner it costs a total of $900 in set fees and charges to lodge a petition made up of the $100 deposit as security for costs under section 356 of the Commonwealth Electoral Act 1918 and the $300 filing fee and the $500 hearing fee under regulations 4(1) and 5(1) respectively of the High Court of Australia (Fees) Regulations If a petitioner can provide a health care card or a health benefit card or provide other reasons acceptable to the High Court Registry that indicate financial constraints then the High Court Regulations allow the $800 High Court fees to be waived There is no waiver under the Commonwealth Electoral Act 1918 for the $100 deposit as security for costs

4310 In addition to these set fees and the deposit under Order 68 rule 3 of the High Court Rules forthwith after filing a petition the petitioner must arrange for the petition to be published in the Commonwealth Gazette and the relevant State Gazette and in the case of an election for the House of Representatives the petitioner must publish a notice giving details of the petition in a newspaper circulating in the relevant electoral Division Further under Order 68 rule 5 of the Rules the petitioner must 28 days after the filing of the petition serve a copy of the petition upon every person whose election or return is disputed by the petition These requirements under the High Court Rules for publication and service can clearly add up to a considerable financial burden to the petitioner

4311 The Commission has no difficulty with the fees service and advertising requirements of the High Court Rules in so far as they apply to petitions disputing elections The Commission does however agree with Justice Gaudron that the provisions in the Commonwealth Electoral Act 1918 relating to costs and legal representation are dated and inconsistent

4312 The history of the introduction in 1902 to 1905 of the provisions of the Commonwealth Electoral Act 1918 relating to costs and legal representation in the Court of Disputed Returns will not be canvassed in detail in this Submission However it is worth noting that the two Houses of Parliament were divided at that time over whether to legislate for a non-judicial parliamentary Elections and Qualifications Committee or a Court of Disputed Returns with full judicial powers to settle election disputes The primary cause of concern was the high cost of legal fees for respondents required to defend their election before a court against wealthy and possibly vexatious petitioners

4313 In the outcome a Court of Disputed Returns was agreed upon as being more impartial in the settling of election disputes than a Parliamentary committee However as a trade-off a provision was inserted in the Act limiting legal representation in order to protect elected parliamentarians from the costs of vexatious challenges Section 370 of the Commonwealth Electoral Act 1918 which provides that except by consent of all parties or by leave of the Court no party shall be represented by counsel or solicitor was therefore inserted by section 57 of the Commonwealth Electoral Act 1905

4314 As a corollary the deposit to be paid by the petitioner as security for costs was held at a low level in the expectation that court costs for the respondents would be contained by the limitation on legal representation The further trade-off was that by holding the deposit to a low level access to the court was not limited for the impecunious petitioner with a genuine dispute Section 195 of the Commonwealth

Electoral Act 1902 provided that the deposit for security for costs should be 50 pounds That amount has not substantially changed in the intervening 90 years and now stands at $100 in section 356 of the Act

4315 Despite the concerns of the early legislators to protect elected parliamentarians from wealthy and vexatious petitioners modern day realities are that respondents will rarely appear without legal representation and more often than not will hire a Queens Counsel whose fee is guaranteed from party or other sympathetic resources It is also unlikely that the court would decline to consent to such representation if there were to be any objection from the petitioner This suggests that section 370 of the Act limiting legal representation no longer serves any practical purpose

4316 The provision does not appear in any way to either advantage or disadvantage the petitioner The impecunious petitioner by obtaining waivers on fees and by appearing without legal representation has ready access to the court The problem that Justice Gaudron has highlighted is that petitioners are encouraged by the apparent limitation on legal representation to bring disputes to court which might never have survived proper legal advice

4317 If section 370 were to be deleted from the legislation then the logical nexus between that provision and section 356 which sets a low $100 as the petitionerrsquos deposit for security for costs would fall away However there are other provisions relating to costs in the Act sections 360 (1)(ix) 360(1)(4) 372 and 373 for example which would need to be considered as part of any general review of the issue of costs and legal representation that the Committee might recommend

Attachment 4

Extract from AEC submission No 96 of 23 October 1996 on Federal Court

61 During the course of the proceedings it appeared as if evidentiary matters might have to be resolved in the petition by the examination of declaration envelopes and the calling of witnesses This could have involved up to 1594 individual investigations The High Court sitting as the Court of Disputed Returns has made it clear on at least one recent occasion (the Webster v Deahm petition in 1993) that it is not amendable to dealing with such a load and would if such evidentiary matters were to be pressed refer the petition to the relevant State Supreme Court This option is available to the Court under section 354 of the CEA

62 However it became clear during proceedings in this petition that there was a preference by the Bench for the questions of law to be resolved by the High Court with only questions of evidence being determined by the Supreme Court rather than the whole of the petition being heard and determined by the Supreme Court It was also the preferred position of the AEC that if a petition were to be split and any questions of evidence were to be remitted to the Supreme Court then the evidentiary determinations should be sent back to the High Court for final decision on the appropriate relief

63 It is the view of the AEC that the High Court and not a Supreme Court of a State should make final determinations on the proper outcome of challenges to a federal election for example whether or not a federal election should be voided The interpretation of section 354 of the CEA by the Chief Justice on 15 August 1996 means that it is not possible for the evidentiary and determinative matters in a petition to be ldquosplitrdquo between the High Court and a Supreme Court under the legislation as it currently standshellip

73 The Snowdon petition also gave rise to a procedural issue about the ldquosplittingrdquo of petitions and the remitting of questions of evidence from the High Court to inferior courts

The AEC recommends that section 354 of the CEA be amended to enable the High Court to remit aspects of a petition to a Supreme Court but so that the High Court retains final jurisdiction on relief

Attachment 5

McClure v AEC (1999) 73 ALJR 1086

See attached

812 The petitioner Mr Ditchburn asked the Court for the following orders

1 A declaration as to the validity of sections 211 211A and subsections 239(2) 239(3) and 273(5) paragraphs (c) (d) and (f) of the Commonwealth Electoral Act 1918

2 An order to annul the election of any Senator declared elected by the Australian Electoral Officer for Queensland pursuant to sections 211 211A 272 and subsections 239(2) 239(3) and 273(5) paragraphs (c) (d) and (f) of the Commonwealth Electoral Act 1918

813 On 22 and 31 March 1999 a summons and affidavit was filed with the Court by Mr Maurice Swan of the Australian Government Solicitor on behalf of the AEC seeking orders that the AEC have leave to enter an appearance in the proceedings that the name of the respondent (AEO Qld) be struck out and that the petition be dismissed or that proceedings be stayed on the grounds that there was no reasonable or probable cause of action or suit or that the proceeding is an abuse of the process of the Court

814 At the hearing on 22 July 1999 in Canberra before Justice Hayne of the High Court sitting as the Court of Disputed Returns Mr Gageler of counsel appeared for the AEC with Mr Geoffrey McCarthy and Mr Ditchburn represented himself on video-link

815 Mr Ditchburn did not opposed the application by the AEC to enter an appearance and leave was granted by the Court Mr Gageler for the AEC relied on the previous decisions of the Court in McKenzie v The Commonwealth (1984) 59 ALJR 190 Abbotto v AEC (1997) 71 ALJR 675 Soegemeier v Macklin (1985) 58 ALR 768 and most recently McClure v AEC (1999) 73 ALJR 1086

816 In the course of interchange with Justice Hayne the petitioner agreed that basis of his argument was that ldquoabove the linerdquo voting amounts to electors choosing a party by means of a group voting ticket rather than direct election of Senators The petitioner submitted that this system contravened section 7 of the Constitution which requires that the Senate be composed of Senators for each State directly chosen by the people of the State The petitioner referred to and relied upon sections 8 9 and 51(xxxvi) of the Constitution and submitted that the effect of group voting tickets provided for under sections 211 and 211A of the Electoral Act was to establish an ldquoelectoral collegerdquo the members of which are the party officials or group candidates listed on the ticket The petitioner submitted that group ticket voting ldquoabove the linerdquo means voting for a college rather than individual candidates

817 In support of his argument the petitioner also referred to the entitlement of parties under sections 211(2)(3) and 211A(2)(3) to lodge with the AEC a group ticket voting statement indicating two or three different orders of preference for the election of candidates The petitioner stated rightly that where a statement is lodged indicating two or three different ways in which a party directs preferences to be allocated the returning officer randomly distributes ballot papers into two or three equal piles (as the case may be)

818 For this reason any elector who voted ldquoabove the linerdquo by reference to a statement indicating two or three different orders for distribution of preferences had no control over how his or her preferences were distributed because the elector did not control on which ldquopilerdquo his or her ballot paper was placed It was submitted by the petitioner that the intervention of the returning officer when distributing the ballot papers contravened the requirement that Senators be chosen directly by the people

819 In the course of the interchange between Justice Hayne and the petitioner it became clear that His Honour was not attracted by any of the arguments put by the petitioner Relying upon earlier decisions of the Court Justice Hayne expressed his view that Parliamentrsquos provision for a complex system of Senate voting does not contravene section 7 of the Constitution It only addresses the manner in which direct voting is conducted His Honour rejected the proposition that the group voting ticket system interposes an electoral college between the choosers and the chosen

8110 The petitioner also sought to rely on section 8 of the Constitution despite express findings in McKenzie and Soegemeier that section 8 had no bearing on the validity of the group ticket voting provisions of the Electoral Act On several occasions Justice Hayne commented that the matters raised by the petitioner were more in the realm of political science than the legal question before the Court namely whether the group voting ticket system contravened the Constitution After some two hours of submissions Justice Hayne then reserved his decision

8111 Later on the same day 22 July Justice Hayne delivered his decision ordering that the petition be dismissed and that the petitioner Mr Ditchburn pay the costs of the respondent the AEC In his decision in Ditchburn v AEO Qld (unreported) Justice Hayne said the following

On 30 November 1998 Donald Kenneth Ditchburn filed an Election Petition pursuant to Div 1 of Pt XXII of the Electoral Act (Cth) (ldquothe Actrdquo) The petition was said to ldquo[concern] the election for Senators held in the State of Queensland held on Saturday 3 October 1998rdquohellip

The petition named as respondent the ldquoAustralian Electoral Officer for Queenslandrdquo The Australian Electoral Commission (ldquothe Commissionrdquo) sought leave to enter an appearance in the proceeding and to be represented and be heard and it sought an order under O 16 r 4 of the High Court Rules that the name of the respondent be struck out as improperly joined It has also sought an order that the petition be dismissed on the ground that it does

not set out facts which would justify any relief under the Act or in the alternative that it be stayed on the ground either that there is no reasonable or probable cause of action or suit or that the proceeding is an abuse of the process of the Court

Section 359 of he Act provides ldquoThe Electoral Commission shall be entitled by leave of the Court of Disputed Returns to enter an appearance in any proceedings in which the validity of any election or return is disputed and to be represented and heard thereon and in such case shall be deemed to be a party respondent to the petitionrdquo

No reason was offered why the Commission should not have the leave it seeks and accordingly leave was granted Because I consider that the petition cannot succeed and should be dismissed I need form no view on whether the respondent named in the petition was ldquoimproperly joinedrdquo within the meaning of O 16 r 4 of the Rules

The central complaint of the petitioner relates to what has come to be known as the ldquoabove the linerdquo and ldquobelow the linerdquo voting or ldquogroup votingrdquo system in Senate elections That is dealt with in ss 211 211A 239 and 272 of the Act and finds reflection in the provisions of s 273 governing scrutiny of votes in Senate electionshellip

Section 211 of the Act provides (in effect) that where the names of candidates nominated in a Senate election are included in a group the candidates may lodge a written statement that they wish voters in the election to indicate their preferences in relation to all the candidates in the election in an order (or any of up to three different orders) specified in the statement being an order that gives preferences to the candidates lodging the statement before any other candidate Section 211A of the Act makes like provision for candidates who are Senators or if there has been a dissolution of the Senate were Senators immediately before the dissolution and who are not members of a group There is no like provision for other candidates not part of a group

The constitutional validity of provisions like s 211 has twice been considered shyin McKenzie v Commonwealth (1984) 59 ALJR 190 57 ALR 747 and in Abbotto v Australian Electoral Commission 72 (1997) 71 ALJR 675 144 ALR 352 At the time of McKenzie the Act was cast in slightly different terms and did not contain s 211A Gibbs CJ rejected a submission that the group voting system then provided for the election of Senators was contrary to s 7 or s 16 of the Constitution shy

Section 7 provides (so far as relevant) ldquoThe Senate shall be composed of senators for each Sate directly chosen by the people of the State voting until the Parliament otherwise provides as one electoraterdquo

Section 16 provides ldquoThe qualifications of a senator shall be the same as those of a member of the House of Representativesrdquo

- and held that the provisions then in force did not lsquoso [offend] democratic principles as to render the sections beyond the power of the Parliament to enact (1984) 59 ALJR 190 at 191 57 ALIl 747 at 749 In Abbotto Dawson J held that there was no substance to the contention that the voting system provided for by ss 211 and 211A contravened s 10 of the Constitution

Section 10 provides ldquountil the Parliament otherwise provides but subject to this Constitution the laws in force in each State for the time being relating to elections for the more numerous House of the Parliament of tile State shall as nearly as practicable apply to elections of senators for the Staterdquo

The present petition suggests that the provisions of the Act dealing with above the line and below the line voting conflict with what was held by the Court in Attorney-General (Cth) Ex rel McKinlay v The Commonwealth (1975) 135 CLR 1 Particular reference was made to those parts of the reasons of Gibbs J (at 44) Stephen J (at 56) Mason J (at 61) and Murphy J (at 68) in which their Honours consider what is meant in s 24 of the Constitution when it says that ldquothe House of Representatives shall be composed of members directly chosen by the people of the Commonwealthrdquo

Like s 24 s 7 of the Constitution also uses the expression ldquodirectly chosen by the peoplerdquo and as Stephen J said in McKinlay (at 56) ldquoEach [s 7 and s 24] calls for a system of representative democracy in the sense that the Houses of the legislature are to be composed of members whom the people choose in each the method of choice is required to be that of direct choice there is to be no interposition of an electoral college between the chooser and the chosenrdquo

The petitioner contended that neither McKenzie v The Commonwealth nor Abbotto v Australian Electoral Commission can be read as dealing directly with the arguments he now seeks to advance I think the better view is that Gibbs CJ did consider these matters in McKenzie and that the decision of Dawson J in Abbotto is inconsistent with the petitionerrsquos contentions

However that may be as I said in McClure I do not accept that the provisions for above the line and below the line voting in Senate elections are contrary to s 7 of the Constitution See also McKenzie v The Commonwealth (1987) 59 ALJR 190 57 ALR 747 Abbotto v Australian Electoral Commission (1997) 71 ALJR 675 144 ALR 352 In particular l do not accept the contention that those provisions ldquoprescribe a method of electing Senators which resembles an electoral college and where Senators are indirectly chosen by the people of the Staterdquo

The petition cannot succeed It should be dismissed

8112 The second Ditchburn petition was heard and decided on the same day

82 The Ditchburn v DRO Herbert Petition

821 On 3 October Mr Donald Ditchburn an elector for the Division of Herbert in Queensland filed a petition in the Brisbane Registry of the High Court disputing the election of the Member for Herbert in Queensland In his petition Mr Ditchburn asserted his entitlement to vote at the election and asserted the following grounds for his petition (inter alia)

hellipElectors (like me) whose first preference for a minor party candidate was initially counted as their vote also had their ballot papers counted for their second third or fourth etc preference candidates and those candidates substituted by the DRO as the electorsrsquo alternative votes

As an electorrsquos vote can be ascribed to any candidate in hisher order of preference it follows that the elector must simultaneously vote for all candidates indicated on his ballot paper Under this construction if electors only vote for their first preference subsequent preferences should not be counted

Thus Section 274 of the Act has the effect of making the preferences each elector indicates pursuant to Section 240(1)(b) into multiple votes for the one vacant seat

This construction conflicts with the express and implied provisions of Section 30 of the Constitution of the Commonwealth of Australia which requires in part ldquobut in the choosing of members each elector shall vote only oncerdquo

But if Section 274 of the Act is construed as requiring the Divisional Returning Officer to ldquotransferrdquo the first preference votes of excluded candidates to opponents the DRO acts as an intermediary (or agent) in the votersrsquo choosing of members of the House of Representatives

The intervention of the DRO actually determines which of any electors preferences is finally accepted in the count of votes and thus determines which candidate the elector actually chooses

Consequently the intervention or agency of an officer of the Crown in the choosing of members means that such members are indirectly chosen by electors whose votes were transferred from excluded candidates This requirement of the Act conflicts with the first provision of Section 24 of the Constitution

ldquo24 The House of Representatives shall be composed of members directly chosen by the people of the Commonwealth rdquo

As Subsections 240(1)(b) 240(2) and 274(7) para (d) 274(7AA) 274(7AB) and 274(7AC) of the Commonwealth Electoral Act 1918 either conflict with Section 24 or with Section 30 of the Constitution of the Commonwealth (or with both) those provisions of the Act should be ultra vires Parliamentsrsquo legislative power under Section 31 and Section 51(xxxvi)

(It is not contended that MHRrsquos elected by gaining an absolute majority of first preference votes pursuant to Subsection 240(1)(a) of the Act are affected)

The facts and inferences referred to above also apply to comparable legislation with respect to the election of Senators filling the final Senate positions for each State Thus Subsection 239(1)(b) and Section 273 Subsections (13) (13AA) (13A) (13B) (13C) (14) (15) and (16) of the Commonwealth Electoral Act 1918 conflict with either Section 7 or Section 8 of the Constitution of the Commonwealth These provisions of the Act should similarly be ultra vires Sections 9 10 and 51(xxxvi) of the Constitutionhellip

822 The petitioner Mr Ditchburn asked the Court for the following orders

1 A declaration as to the validity of Subsections 240(1)(b) 240(2) and 274(7) para (d) 274(7AA) 274(7AB) and 274(7AC) of the Commonwealth Electoral Act 1918

2 An order to annul the election of the Member for Herbert declared elected by the Divisional Returning Officer for Herbert pursuant to the provisions of the Act referred to in 1 above

823 On 22 and 31 March 1999 a summons and affidavit was filed with the Court by Mr Maurice Swan of the Australian Government Solicitor on behalf of the AEC seeking orders that the AEC have leave to enter an appearance in the proceedings that the name of the respondent (DRO Herbert) be struck out and that the petition be dismissed or that proceedings be stayed on the grounds that there was no reasonable or probable cause of action or suit or that the proceeding is an abuse of the process of the Court

824 At the hearing on 22 July 1999 in Canberra before Justice Hayne of the High Court sitting as the Court of Disputed Returns Mr Gageler of counsel appeared for the AEC with Mr Geoffrey McCarthy and Mr Ditchburn represented himself on video-link

825 Mr Ditchburn did not oppose the application by the AEC to enter an appearance and leave was granted by the Court Mr Gageler for the AEC relied on the decision of the Court in Langer v The Commonwealth (1996) 186 CLR 302 where all members of the Court including Justice Dawson who otherwise dissented held section 240 of the Electoral Act valid

826 In reply the petitioner submitted that his petition was different in principle from the matters considered in Langer because his petition relied on the word ldquodirectlyrdquo appearing in section 24 of the Constitution This he submitted was not a matter raised or considered by the Court in Langer Justice Hayne listened to the petitioner at length but frequently commented that the issues being raised by the petitioner were matters of political science not constitutional validity His Honour then reserved his decision

827 Later on the same day 22 July 1999 Justice Hayne delivered his decision ordering that the petition be dismissed and that the petitioner Mr Ditchburn pay the costs of the AEC In his decision in Ditchburn v DRO Herbert (unreported) Justice Hayne said the following

On 7 December 1998 Donald Kenneth Ditchburn filed an Election Petition pursuant to Div 1 of Pt XXII of the Electoral Act (Cth) (ldquothe Actrdquo) The petition was said to concern ldquothe election for the House of Representatives seat for the Division of Herbert held on Saturday 3 October 1998rdquo It alleged that the petitioner is enrolled in the Federal Division of Herbert in the State of Queensland and it appears from other allegations in the petition that he was eligible to vote in that Division in the election held on 3 October 1998

The Australian Electoral Commission seeks leave to enter an appearance in the proceeding and to be represented and be heard It seeks an order under O 16 r 4 of the High Court Rules that the name of the respondent to the petition be struck out It also seeks an order dismissing the petition or staying proceedings on the petition on the ground either that there is no reasonable or probable cause of action or suit or that the proceeding is an abuse of the process of the Court

As was the case in the other electoral petition which was instituted by Mr Ditchburn and with which I have dealt today Ditchburn v Australian Electoral Officer for Queensland [1999] HCA no reason was offered why the Commission should not have the leave it sought (under s 359 of the Act) and accordingly leave was given for it to appear be represented and heard on the petition Again however I need form no view on whether the respondent named in the petition was ldquoimproperly joinedrdquo within the meaning of O 16 r 4 of the Rules

The petitioner seeks to contend that the system of preferential voting for candidates in House of Representatives elections is contrary to the requirements of s 24 of the Constitution that the members of that House be ldquodirectly chosen by the peoplerdquo and s 30 of the Constitution that ldquoin the choosing of members each elector shall vole only oncerdquo In particular he alleges that ss 240(1)(b) 240(2) 274(7)(d) 274(7AA) 274(7AB) and 274(7AC) of the Act are invalid and he seeks a declaration to that effect and ldquoan order to annul the election of the Member for Herbert declared elected by the Divisional Returning Officer for Herbertrdquo pursuant to these provisionshellip

In my opinion these arguments [in the petition] are not tenable Some other arguments not raised by the petition were mentioned by the petitioner in oral argument They were by and large arguments of a political rather than legal nature Even if open to the petitioner sections 355 358 they do not assist in resolving the consyitulional issues that the petitioner sought to raise

In Langer v The Commonwealth (1996) 186 CLR 302 at least five members of the Court held at 316-317 per Brennan CJ 333 per Toohey and Gaudron JJ 348-349 per Gummow J that s 240 of the Act was a valid law within ss 31 and 51(xxxvi) of the Constitution and was not inconsistent with the requirement of s 24 that the House of Representatives shall be comprised of members ldquodirectly chosen by the people of the Commonwealthrdquo See also Judd v McKeon (1926) 38 CLR 380 Faderson v Bridger (1971) 126 CLR 217 And it may well be that the other two members of the Court were of the same opinion at 323 per Dawson J 340-341 per McHugh J The argument which the petitioner seeks to advance is at least to the extent that he relies on s 24 an argument which I am bound to hold would fail Even if Langer does not decide the further point on which the petitioner seeks to rely (that under the

preferential voting system a voter votes more than once contrary to s 30) that contention is one which must fail

Prior to Federation plural voting related to property qualification was allowed in Tasmania Western Australia and Queensland Attorney-General (Cth) Ex rel McKinlay v The Commonwealth (1975) 135 CLR 1 at 19 per Barwick CJ McGinty v Western Australia (1996) 186 CLR 140 at 281-282 per Gummow J It is clear from the Debates at the 1891 Convention in Sydney that the question of plural voting was well in the minds of the members of the Constitutional Conventions from which the terms of the Constitution emerged Official Record of the Debates of the Australasian Federal Convention (Sydney) 1891 vol 1 613-617 But the plural voting then under consideration permitted a voter to cast more than one expression of his or (in South Australia and Western Australia) her choice of candidate

The preferential voting system was provided for House of Representatives elections by s 124 of the Commonwealth Electoral Act 1918 and for the Senate by s 7 of the Commonwealth Electoral Act 1919 As McHugh J noted in Langer v The Commonwealth at 342 ldquoCompulsory preferential voting does not appear to have been introduced into Australia until 1911 when it was introduced in Western Australia But optional preferential voting was used in Queensland after 1892rdquo Even so the Constitution that emerged from the Constitutional Conventions ldquodid not entrench the secret ballot compulsory voting preferential or proportional votingrdquo McGinty v Western Australia (1996) 186 CLR 140 at 283 per Gummow J All that was said (so far as presently relevant) was that the members of the House of Representatives were to be ldquodirectly chosen by the peoplerdquo section 24 that until the Parliament otherwise provides ldquothe qualification of electors of members of the House of Representatives shall be in each State that which is prescribed by the law of the Slate as the qualification of electors of the more numerous House of Parliament of the Staterdquo section 30 and that ldquoin the choosing of members each elector shall vote only oncerdquo section 30

The petitioner placed some emphasis on what was said by McHugh J in Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106 at 228-233 about ldquorepresentative governmentrdquo But as Brennan CJ pointed out in McGinty v Western Australia at 169 the expressions ldquorepresentative governmentrdquo and ldquorepresentative democracyrdquo are not found in the Constitution and although they are useful terms to describe the effect of ss 7 and 24 ldquo[i]t is logically impermissible to treat lsquorepresentative democracyrsquo as though it were contained in the Constitution to attribute to the term a meaning or content derived from sources extrinsic to the Constitution and then to invalidate a law for inconsistency with the meaning or content so attributedrdquo

The requirements that members be ldquodirectly chosenrdquo and that ldquoeach elector shall vote only oncerdquo do not preclude the Parliament from providing (as it has) for a compulsory preferential voting system Langer v The Commonwealth Soegemeier v Macklin (1985) 58 ALR 768 Under that system each elector casts but one expression of his or her choice of member in one electoral division The choice is expressed in a complex way but it remains a single expression of the will of that voter And perhaps more relevantly the voter cannot cast a vote in more than one electoral district as voters could in those Colonies that permitted plural voting related to property qualifications The voter votes only once

No doubt it is right to say as the petitioner does that the distribution of preferences requires electoral officers to undertake the process prescribed in those parts of s 274 which deal with that subject But the performance of those tasks does not mean that the member is not ldquodirectly chosenrdquo as that expression is used in s 24

The petition cannot succeed It should be dismissed

9 Implications of the Ditchburn Decisions

91 Senate Group Ticket Voting

911 As discussed in part 71 above in this submission it is not unusual for independent Senate candidates to belatedly discover generally at the time of nomination that they are not entitled to appear on the ballot paper as a group ldquoabove the linerdquo and thereby take advantage of the ticket voting system for the Senate This may give rise to some protest at the ldquofairnessrdquo of sections 211 and 211A of the Electoral Act and can result in petitions to the Court of Disputed Returns after the election on the grounds that the law is both unconstitutional and ldquounfairrdquo to independent candidates

912 In Ditchburn v AEO Qld (unreported) Justice Hayne has confirmed the decisions in McClure v AEC (1999) 73 ALJR 1086 in Abbotto v AEC (1997) 71 ALJR 675 and in McKenzie v The Commonwealth (1984) 59 ALJR 190 that the Senate group ticket voting system is not unconstitutional and that it is not for the Court to decide whether the Senate group voting system is ldquofairrdquo or ldquounfairrdquo to independent candidates

913 In Ditchburn v AEO Qld Justice Hayne dealt with the further contention that the Senate group ticket voting is contrary to section 7 of the Constitution which requires that senators be ldquodirectly chosen by the peoplerdquo His Honour said that he did not accept the contention that sections 211 and 211A of the Electoral Act ldquoprescribe a method of electing Senators which resembles an electoral college and where Senators are indirectly chosen by the people of the Staterdquo

914 Full Preferential Voting

915 In Ditchburn v DRO Herbert (unreported) it was contended that full preferential voting is contrary to section 24 of the Constitution which requires that members be ldquodirectly chosen by the peoplerdquo and section 30 of the Constitution which requires that ldquoin the choosing of members each elector shall vote only oncerdquo

916 Justice Hayne did not accept that full preferential voting under section 240 of the Electoral Act is contrary to section 24 of the Constitution which requires that members be ldquodirectly chosen by the peoplerdquo In coming to this decision His Honour relied on the decision of the High Court in Langer v The Commonwealth (1996) 186 CLR 302 In Langer the High Court held that section 240 of the Electoral Act is a valid law within sections 31 and 51(xxxvi) of the Constitution and not inconsistent with the requirements of section 24 of the Constitution Justice Hayne noted that the decision in Langer was consistent with the decisions in Judd v McKeon (1926) 38 CLR 380 and Faderson v Bridger (1971) 126 CLR 217

917 Further Justice Hayne did not accept that full preferential voting is contrary to section 30 of the Constitution which requires that ldquoin the choosing of members each elector shall vote only oncerdquo In coming to this decision Justice Hayne relied on Attorney-General (Cth) Ex rel McKinlay v The Commonwealth (1975) 135 CLR 1 McGinty v Western Australia (1996) 186 CLR 140 Langer v The Commonwealth (1996) 186 CLR 302 and Soegemeier v Macklin (1985) 58 ALR 768

918 His Honour noted that prior to Federation plural voting on the basis of property qualifications was allowed in Tasmania Western Australia and Queensland It was clear from the Debates at the 1891 Convention in Sydney that the question of plural voting was well in the minds of the members of the Constitutional Conventions from which the terms of the Constitution emerged and hence the phrase ldquoin the choosing of members each elector shall vote only oncerdquo It is notable in this context that the Constitution that emerged from the Constitutional Conventions did not entrench either the secret ballot compulsory voting preferential voting or proportional voting

919 His Honour concluded that under the full preferential voting system each elector casts but one expression of his or her choice of member in one electoral Division The choice is expressed in a complex way but it remains a single expression of the will of that voter That is at federal elections with full preferential voting the voter votes only once All that the Constitution appears to proscribe is plural voting based on property qualifications as was permitted in colonial times

10 Summary of Outcomes in the 1998 Election Petitions

bull The Court of Disputed Returns has jurisdiction to hear election petitions disputing the constitutional qualifications of candidates

bull The United Kingdom is a ldquoforeign powerrdquo under the terms of section 44(i) of the Constitution

bull Ms Heather Hill a elected candidate for the Senate in Queensland was disqualified under section 44(i) of the Constitution as a British subject at the time of her nomination

bull The Senate group voting system is a valid law of the Parliament under the terms of the Constitution including sections 7 and 24 which require that senators and members be ldquodirectly chosen by the peoplerdquo

bull It is not for the Court to decide whether or not the Senate group voting system is fair or unfair to independent candidates

bull There is no provision for class actions in election petitions and in any case electors can only dispute the elections for which they were entitled to vote

bull The Court will apply the law as provided by the Parliament within the terms of the Constitution and there is nothing to suggest that Royal Assent was not properly given to the Electoral Act and its amending Acts

bull Section 240 of the Electoral Act which provides for full preferential voting is a valid law within the terms of the Constitution including sections 7 and 24 which require that members and senators be ldquodirectly chosen by the peoplerdquo and sections 8 and 30 which require that ldquoeach elector shall vote only oncerdquo

ATTACHMENTS

Attachment 1

Sue v Hill (S1791998 Gleeson CJ 19 March 1999 unreported)

See attached

Attachment 2

Sue v Hill (1999) 73 ALJR 1016

See attached

Attachment 3

Extract from AEC submission No124 of 15 November 1993 re costs

432 During the hearing on 1 October 1993 on the question of costs Justice Gaudron made a number of observations on the ease with which election petitions which may have no legal merit can be lodged with the Court of Disputed Returns under the current provisions of the Commonwealth Electoral Act 1918 For example on page 54 of the transcript Justice Gaudron said the following

The Act is by no means of model of clarity as to who can bring petitions it sets it up so that a person can come without the benefit of legal advice which might deflect it In fact it discourages positively prohibits legal representation without leave so that the Act is virtually inviting people to bring petitions which have not had the benefit of legal analysis

433 Her Honour then appeared to agree with the proposition of Mr Gageler for the Commonwealth that whilst the $100 security for costs required under section 356 of the Act in order to lodge a petition may have been a deterrent to vexatious or frivolous petitioners when it was first legislated in 1902 (when it was 50 pounds) it can hardly be regarded as a meaningful deterrent these days

434 In discussing with Mr Gageler the scheme of the Act which appears to encourage unimpeded access to the Court of Disputed Returns by any and all petitioners Justice Gaudron said at page 55 of the transcript

Virtually unimpeded access and as you tell me five out of six [of the petitions] have failed One well knows that some of the grounds that have been advanced in these petitions - and I put Mr Hudsons to one side - have been grounds that one would think would not have survived legal advice

435 In reference to section 370 of the Act which provides that no party to the petition shall except by consent of all parties or by leave of the Court be represented by counsel or solicitor [and] in no case shall more than one counsel or solicitor appear on behalf of any party Justice Gaudron went on to say

But very rarely do you have a provision such as this - you do in some Acts but not commonly - no legal representation except by leave So what you are doing is you are in fact encouraging people to come to the Court with arguments that do not necessarily have a basis in law

436 And finally on page 58 of the transcript Justice Gaudron said

I was hoping maybe that the legislature might see fit to do something with respect to the provisions as they stand It is by no means a model of clarity is it that part of the Act

437 These comments from the Bench are directed to petitions that ldquowould not have survived legal advicerdquo that is vexatious andor frivolous petitions and not to the Hudson petition in particular as is obvious from Justice Gaudronrsquos comment that the ease of access to the Court for petitioners of limited means such as Mr Hudson is ldquocommendablerdquo (see paragraph 427 above)

438 If any review of the provisions of the Act relating to costs and legal representation were to be undertaken it would need to be in the context of the following considerations

439 For the average petitioner it costs a total of $900 in set fees and charges to lodge a petition made up of the $100 deposit as security for costs under section 356 of the Commonwealth Electoral Act 1918 and the $300 filing fee and the $500 hearing fee under regulations 4(1) and 5(1) respectively of the High Court of Australia (Fees) Regulations If a petitioner can provide a health care card or a health benefit card or provide other reasons acceptable to the High Court Registry that indicate financial constraints then the High Court Regulations allow the $800 High Court fees to be waived There is no waiver under the Commonwealth Electoral Act 1918 for the $100 deposit as security for costs

4310 In addition to these set fees and the deposit under Order 68 rule 3 of the High Court Rules forthwith after filing a petition the petitioner must arrange for the petition to be published in the Commonwealth Gazette and the relevant State Gazette and in the case of an election for the House of Representatives the petitioner must publish a notice giving details of the petition in a newspaper circulating in the relevant electoral Division Further under Order 68 rule 5 of the Rules the petitioner must 28 days after the filing of the petition serve a copy of the petition upon every person whose election or return is disputed by the petition These requirements under the High Court Rules for publication and service can clearly add up to a considerable financial burden to the petitioner

4311 The Commission has no difficulty with the fees service and advertising requirements of the High Court Rules in so far as they apply to petitions disputing elections The Commission does however agree with Justice Gaudron that the provisions in the Commonwealth Electoral Act 1918 relating to costs and legal representation are dated and inconsistent

4312 The history of the introduction in 1902 to 1905 of the provisions of the Commonwealth Electoral Act 1918 relating to costs and legal representation in the Court of Disputed Returns will not be canvassed in detail in this Submission However it is worth noting that the two Houses of Parliament were divided at that time over whether to legislate for a non-judicial parliamentary Elections and Qualifications Committee or a Court of Disputed Returns with full judicial powers to settle election disputes The primary cause of concern was the high cost of legal fees for respondents required to defend their election before a court against wealthy and possibly vexatious petitioners

4313 In the outcome a Court of Disputed Returns was agreed upon as being more impartial in the settling of election disputes than a Parliamentary committee However as a trade-off a provision was inserted in the Act limiting legal representation in order to protect elected parliamentarians from the costs of vexatious challenges Section 370 of the Commonwealth Electoral Act 1918 which provides that except by consent of all parties or by leave of the Court no party shall be represented by counsel or solicitor was therefore inserted by section 57 of the Commonwealth Electoral Act 1905

4314 As a corollary the deposit to be paid by the petitioner as security for costs was held at a low level in the expectation that court costs for the respondents would be contained by the limitation on legal representation The further trade-off was that by holding the deposit to a low level access to the court was not limited for the impecunious petitioner with a genuine dispute Section 195 of the Commonwealth

Electoral Act 1902 provided that the deposit for security for costs should be 50 pounds That amount has not substantially changed in the intervening 90 years and now stands at $100 in section 356 of the Act

4315 Despite the concerns of the early legislators to protect elected parliamentarians from wealthy and vexatious petitioners modern day realities are that respondents will rarely appear without legal representation and more often than not will hire a Queens Counsel whose fee is guaranteed from party or other sympathetic resources It is also unlikely that the court would decline to consent to such representation if there were to be any objection from the petitioner This suggests that section 370 of the Act limiting legal representation no longer serves any practical purpose

4316 The provision does not appear in any way to either advantage or disadvantage the petitioner The impecunious petitioner by obtaining waivers on fees and by appearing without legal representation has ready access to the court The problem that Justice Gaudron has highlighted is that petitioners are encouraged by the apparent limitation on legal representation to bring disputes to court which might never have survived proper legal advice

4317 If section 370 were to be deleted from the legislation then the logical nexus between that provision and section 356 which sets a low $100 as the petitionerrsquos deposit for security for costs would fall away However there are other provisions relating to costs in the Act sections 360 (1)(ix) 360(1)(4) 372 and 373 for example which would need to be considered as part of any general review of the issue of costs and legal representation that the Committee might recommend

Attachment 4

Extract from AEC submission No 96 of 23 October 1996 on Federal Court

61 During the course of the proceedings it appeared as if evidentiary matters might have to be resolved in the petition by the examination of declaration envelopes and the calling of witnesses This could have involved up to 1594 individual investigations The High Court sitting as the Court of Disputed Returns has made it clear on at least one recent occasion (the Webster v Deahm petition in 1993) that it is not amendable to dealing with such a load and would if such evidentiary matters were to be pressed refer the petition to the relevant State Supreme Court This option is available to the Court under section 354 of the CEA

62 However it became clear during proceedings in this petition that there was a preference by the Bench for the questions of law to be resolved by the High Court with only questions of evidence being determined by the Supreme Court rather than the whole of the petition being heard and determined by the Supreme Court It was also the preferred position of the AEC that if a petition were to be split and any questions of evidence were to be remitted to the Supreme Court then the evidentiary determinations should be sent back to the High Court for final decision on the appropriate relief

63 It is the view of the AEC that the High Court and not a Supreme Court of a State should make final determinations on the proper outcome of challenges to a federal election for example whether or not a federal election should be voided The interpretation of section 354 of the CEA by the Chief Justice on 15 August 1996 means that it is not possible for the evidentiary and determinative matters in a petition to be ldquosplitrdquo between the High Court and a Supreme Court under the legislation as it currently standshellip

73 The Snowdon petition also gave rise to a procedural issue about the ldquosplittingrdquo of petitions and the remitting of questions of evidence from the High Court to inferior courts

The AEC recommends that section 354 of the CEA be amended to enable the High Court to remit aspects of a petition to a Supreme Court but so that the High Court retains final jurisdiction on relief

Attachment 5

McClure v AEC (1999) 73 ALJR 1086

See attached

817 In support of his argument the petitioner also referred to the entitlement of parties under sections 211(2)(3) and 211A(2)(3) to lodge with the AEC a group ticket voting statement indicating two or three different orders of preference for the election of candidates The petitioner stated rightly that where a statement is lodged indicating two or three different ways in which a party directs preferences to be allocated the returning officer randomly distributes ballot papers into two or three equal piles (as the case may be)

818 For this reason any elector who voted ldquoabove the linerdquo by reference to a statement indicating two or three different orders for distribution of preferences had no control over how his or her preferences were distributed because the elector did not control on which ldquopilerdquo his or her ballot paper was placed It was submitted by the petitioner that the intervention of the returning officer when distributing the ballot papers contravened the requirement that Senators be chosen directly by the people

819 In the course of the interchange between Justice Hayne and the petitioner it became clear that His Honour was not attracted by any of the arguments put by the petitioner Relying upon earlier decisions of the Court Justice Hayne expressed his view that Parliamentrsquos provision for a complex system of Senate voting does not contravene section 7 of the Constitution It only addresses the manner in which direct voting is conducted His Honour rejected the proposition that the group voting ticket system interposes an electoral college between the choosers and the chosen

8110 The petitioner also sought to rely on section 8 of the Constitution despite express findings in McKenzie and Soegemeier that section 8 had no bearing on the validity of the group ticket voting provisions of the Electoral Act On several occasions Justice Hayne commented that the matters raised by the petitioner were more in the realm of political science than the legal question before the Court namely whether the group voting ticket system contravened the Constitution After some two hours of submissions Justice Hayne then reserved his decision

8111 Later on the same day 22 July Justice Hayne delivered his decision ordering that the petition be dismissed and that the petitioner Mr Ditchburn pay the costs of the respondent the AEC In his decision in Ditchburn v AEO Qld (unreported) Justice Hayne said the following

On 30 November 1998 Donald Kenneth Ditchburn filed an Election Petition pursuant to Div 1 of Pt XXII of the Electoral Act (Cth) (ldquothe Actrdquo) The petition was said to ldquo[concern] the election for Senators held in the State of Queensland held on Saturday 3 October 1998rdquohellip

The petition named as respondent the ldquoAustralian Electoral Officer for Queenslandrdquo The Australian Electoral Commission (ldquothe Commissionrdquo) sought leave to enter an appearance in the proceeding and to be represented and be heard and it sought an order under O 16 r 4 of the High Court Rules that the name of the respondent be struck out as improperly joined It has also sought an order that the petition be dismissed on the ground that it does

not set out facts which would justify any relief under the Act or in the alternative that it be stayed on the ground either that there is no reasonable or probable cause of action or suit or that the proceeding is an abuse of the process of the Court

Section 359 of he Act provides ldquoThe Electoral Commission shall be entitled by leave of the Court of Disputed Returns to enter an appearance in any proceedings in which the validity of any election or return is disputed and to be represented and heard thereon and in such case shall be deemed to be a party respondent to the petitionrdquo

No reason was offered why the Commission should not have the leave it seeks and accordingly leave was granted Because I consider that the petition cannot succeed and should be dismissed I need form no view on whether the respondent named in the petition was ldquoimproperly joinedrdquo within the meaning of O 16 r 4 of the Rules

The central complaint of the petitioner relates to what has come to be known as the ldquoabove the linerdquo and ldquobelow the linerdquo voting or ldquogroup votingrdquo system in Senate elections That is dealt with in ss 211 211A 239 and 272 of the Act and finds reflection in the provisions of s 273 governing scrutiny of votes in Senate electionshellip

Section 211 of the Act provides (in effect) that where the names of candidates nominated in a Senate election are included in a group the candidates may lodge a written statement that they wish voters in the election to indicate their preferences in relation to all the candidates in the election in an order (or any of up to three different orders) specified in the statement being an order that gives preferences to the candidates lodging the statement before any other candidate Section 211A of the Act makes like provision for candidates who are Senators or if there has been a dissolution of the Senate were Senators immediately before the dissolution and who are not members of a group There is no like provision for other candidates not part of a group

The constitutional validity of provisions like s 211 has twice been considered shyin McKenzie v Commonwealth (1984) 59 ALJR 190 57 ALR 747 and in Abbotto v Australian Electoral Commission 72 (1997) 71 ALJR 675 144 ALR 352 At the time of McKenzie the Act was cast in slightly different terms and did not contain s 211A Gibbs CJ rejected a submission that the group voting system then provided for the election of Senators was contrary to s 7 or s 16 of the Constitution shy

Section 7 provides (so far as relevant) ldquoThe Senate shall be composed of senators for each Sate directly chosen by the people of the State voting until the Parliament otherwise provides as one electoraterdquo

Section 16 provides ldquoThe qualifications of a senator shall be the same as those of a member of the House of Representativesrdquo

- and held that the provisions then in force did not lsquoso [offend] democratic principles as to render the sections beyond the power of the Parliament to enact (1984) 59 ALJR 190 at 191 57 ALIl 747 at 749 In Abbotto Dawson J held that there was no substance to the contention that the voting system provided for by ss 211 and 211A contravened s 10 of the Constitution

Section 10 provides ldquountil the Parliament otherwise provides but subject to this Constitution the laws in force in each State for the time being relating to elections for the more numerous House of the Parliament of tile State shall as nearly as practicable apply to elections of senators for the Staterdquo

The present petition suggests that the provisions of the Act dealing with above the line and below the line voting conflict with what was held by the Court in Attorney-General (Cth) Ex rel McKinlay v The Commonwealth (1975) 135 CLR 1 Particular reference was made to those parts of the reasons of Gibbs J (at 44) Stephen J (at 56) Mason J (at 61) and Murphy J (at 68) in which their Honours consider what is meant in s 24 of the Constitution when it says that ldquothe House of Representatives shall be composed of members directly chosen by the people of the Commonwealthrdquo

Like s 24 s 7 of the Constitution also uses the expression ldquodirectly chosen by the peoplerdquo and as Stephen J said in McKinlay (at 56) ldquoEach [s 7 and s 24] calls for a system of representative democracy in the sense that the Houses of the legislature are to be composed of members whom the people choose in each the method of choice is required to be that of direct choice there is to be no interposition of an electoral college between the chooser and the chosenrdquo

The petitioner contended that neither McKenzie v The Commonwealth nor Abbotto v Australian Electoral Commission can be read as dealing directly with the arguments he now seeks to advance I think the better view is that Gibbs CJ did consider these matters in McKenzie and that the decision of Dawson J in Abbotto is inconsistent with the petitionerrsquos contentions

However that may be as I said in McClure I do not accept that the provisions for above the line and below the line voting in Senate elections are contrary to s 7 of the Constitution See also McKenzie v The Commonwealth (1987) 59 ALJR 190 57 ALR 747 Abbotto v Australian Electoral Commission (1997) 71 ALJR 675 144 ALR 352 In particular l do not accept the contention that those provisions ldquoprescribe a method of electing Senators which resembles an electoral college and where Senators are indirectly chosen by the people of the Staterdquo

The petition cannot succeed It should be dismissed

8112 The second Ditchburn petition was heard and decided on the same day

82 The Ditchburn v DRO Herbert Petition

821 On 3 October Mr Donald Ditchburn an elector for the Division of Herbert in Queensland filed a petition in the Brisbane Registry of the High Court disputing the election of the Member for Herbert in Queensland In his petition Mr Ditchburn asserted his entitlement to vote at the election and asserted the following grounds for his petition (inter alia)

hellipElectors (like me) whose first preference for a minor party candidate was initially counted as their vote also had their ballot papers counted for their second third or fourth etc preference candidates and those candidates substituted by the DRO as the electorsrsquo alternative votes

As an electorrsquos vote can be ascribed to any candidate in hisher order of preference it follows that the elector must simultaneously vote for all candidates indicated on his ballot paper Under this construction if electors only vote for their first preference subsequent preferences should not be counted

Thus Section 274 of the Act has the effect of making the preferences each elector indicates pursuant to Section 240(1)(b) into multiple votes for the one vacant seat

This construction conflicts with the express and implied provisions of Section 30 of the Constitution of the Commonwealth of Australia which requires in part ldquobut in the choosing of members each elector shall vote only oncerdquo

But if Section 274 of the Act is construed as requiring the Divisional Returning Officer to ldquotransferrdquo the first preference votes of excluded candidates to opponents the DRO acts as an intermediary (or agent) in the votersrsquo choosing of members of the House of Representatives

The intervention of the DRO actually determines which of any electors preferences is finally accepted in the count of votes and thus determines which candidate the elector actually chooses

Consequently the intervention or agency of an officer of the Crown in the choosing of members means that such members are indirectly chosen by electors whose votes were transferred from excluded candidates This requirement of the Act conflicts with the first provision of Section 24 of the Constitution

ldquo24 The House of Representatives shall be composed of members directly chosen by the people of the Commonwealth rdquo

As Subsections 240(1)(b) 240(2) and 274(7) para (d) 274(7AA) 274(7AB) and 274(7AC) of the Commonwealth Electoral Act 1918 either conflict with Section 24 or with Section 30 of the Constitution of the Commonwealth (or with both) those provisions of the Act should be ultra vires Parliamentsrsquo legislative power under Section 31 and Section 51(xxxvi)

(It is not contended that MHRrsquos elected by gaining an absolute majority of first preference votes pursuant to Subsection 240(1)(a) of the Act are affected)

The facts and inferences referred to above also apply to comparable legislation with respect to the election of Senators filling the final Senate positions for each State Thus Subsection 239(1)(b) and Section 273 Subsections (13) (13AA) (13A) (13B) (13C) (14) (15) and (16) of the Commonwealth Electoral Act 1918 conflict with either Section 7 or Section 8 of the Constitution of the Commonwealth These provisions of the Act should similarly be ultra vires Sections 9 10 and 51(xxxvi) of the Constitutionhellip

822 The petitioner Mr Ditchburn asked the Court for the following orders

1 A declaration as to the validity of Subsections 240(1)(b) 240(2) and 274(7) para (d) 274(7AA) 274(7AB) and 274(7AC) of the Commonwealth Electoral Act 1918

2 An order to annul the election of the Member for Herbert declared elected by the Divisional Returning Officer for Herbert pursuant to the provisions of the Act referred to in 1 above

823 On 22 and 31 March 1999 a summons and affidavit was filed with the Court by Mr Maurice Swan of the Australian Government Solicitor on behalf of the AEC seeking orders that the AEC have leave to enter an appearance in the proceedings that the name of the respondent (DRO Herbert) be struck out and that the petition be dismissed or that proceedings be stayed on the grounds that there was no reasonable or probable cause of action or suit or that the proceeding is an abuse of the process of the Court

824 At the hearing on 22 July 1999 in Canberra before Justice Hayne of the High Court sitting as the Court of Disputed Returns Mr Gageler of counsel appeared for the AEC with Mr Geoffrey McCarthy and Mr Ditchburn represented himself on video-link

825 Mr Ditchburn did not oppose the application by the AEC to enter an appearance and leave was granted by the Court Mr Gageler for the AEC relied on the decision of the Court in Langer v The Commonwealth (1996) 186 CLR 302 where all members of the Court including Justice Dawson who otherwise dissented held section 240 of the Electoral Act valid

826 In reply the petitioner submitted that his petition was different in principle from the matters considered in Langer because his petition relied on the word ldquodirectlyrdquo appearing in section 24 of the Constitution This he submitted was not a matter raised or considered by the Court in Langer Justice Hayne listened to the petitioner at length but frequently commented that the issues being raised by the petitioner were matters of political science not constitutional validity His Honour then reserved his decision

827 Later on the same day 22 July 1999 Justice Hayne delivered his decision ordering that the petition be dismissed and that the petitioner Mr Ditchburn pay the costs of the AEC In his decision in Ditchburn v DRO Herbert (unreported) Justice Hayne said the following

On 7 December 1998 Donald Kenneth Ditchburn filed an Election Petition pursuant to Div 1 of Pt XXII of the Electoral Act (Cth) (ldquothe Actrdquo) The petition was said to concern ldquothe election for the House of Representatives seat for the Division of Herbert held on Saturday 3 October 1998rdquo It alleged that the petitioner is enrolled in the Federal Division of Herbert in the State of Queensland and it appears from other allegations in the petition that he was eligible to vote in that Division in the election held on 3 October 1998

The Australian Electoral Commission seeks leave to enter an appearance in the proceeding and to be represented and be heard It seeks an order under O 16 r 4 of the High Court Rules that the name of the respondent to the petition be struck out It also seeks an order dismissing the petition or staying proceedings on the petition on the ground either that there is no reasonable or probable cause of action or suit or that the proceeding is an abuse of the process of the Court

As was the case in the other electoral petition which was instituted by Mr Ditchburn and with which I have dealt today Ditchburn v Australian Electoral Officer for Queensland [1999] HCA no reason was offered why the Commission should not have the leave it sought (under s 359 of the Act) and accordingly leave was given for it to appear be represented and heard on the petition Again however I need form no view on whether the respondent named in the petition was ldquoimproperly joinedrdquo within the meaning of O 16 r 4 of the Rules

The petitioner seeks to contend that the system of preferential voting for candidates in House of Representatives elections is contrary to the requirements of s 24 of the Constitution that the members of that House be ldquodirectly chosen by the peoplerdquo and s 30 of the Constitution that ldquoin the choosing of members each elector shall vole only oncerdquo In particular he alleges that ss 240(1)(b) 240(2) 274(7)(d) 274(7AA) 274(7AB) and 274(7AC) of the Act are invalid and he seeks a declaration to that effect and ldquoan order to annul the election of the Member for Herbert declared elected by the Divisional Returning Officer for Herbertrdquo pursuant to these provisionshellip

In my opinion these arguments [in the petition] are not tenable Some other arguments not raised by the petition were mentioned by the petitioner in oral argument They were by and large arguments of a political rather than legal nature Even if open to the petitioner sections 355 358 they do not assist in resolving the consyitulional issues that the petitioner sought to raise

In Langer v The Commonwealth (1996) 186 CLR 302 at least five members of the Court held at 316-317 per Brennan CJ 333 per Toohey and Gaudron JJ 348-349 per Gummow J that s 240 of the Act was a valid law within ss 31 and 51(xxxvi) of the Constitution and was not inconsistent with the requirement of s 24 that the House of Representatives shall be comprised of members ldquodirectly chosen by the people of the Commonwealthrdquo See also Judd v McKeon (1926) 38 CLR 380 Faderson v Bridger (1971) 126 CLR 217 And it may well be that the other two members of the Court were of the same opinion at 323 per Dawson J 340-341 per McHugh J The argument which the petitioner seeks to advance is at least to the extent that he relies on s 24 an argument which I am bound to hold would fail Even if Langer does not decide the further point on which the petitioner seeks to rely (that under the

preferential voting system a voter votes more than once contrary to s 30) that contention is one which must fail

Prior to Federation plural voting related to property qualification was allowed in Tasmania Western Australia and Queensland Attorney-General (Cth) Ex rel McKinlay v The Commonwealth (1975) 135 CLR 1 at 19 per Barwick CJ McGinty v Western Australia (1996) 186 CLR 140 at 281-282 per Gummow J It is clear from the Debates at the 1891 Convention in Sydney that the question of plural voting was well in the minds of the members of the Constitutional Conventions from which the terms of the Constitution emerged Official Record of the Debates of the Australasian Federal Convention (Sydney) 1891 vol 1 613-617 But the plural voting then under consideration permitted a voter to cast more than one expression of his or (in South Australia and Western Australia) her choice of candidate

The preferential voting system was provided for House of Representatives elections by s 124 of the Commonwealth Electoral Act 1918 and for the Senate by s 7 of the Commonwealth Electoral Act 1919 As McHugh J noted in Langer v The Commonwealth at 342 ldquoCompulsory preferential voting does not appear to have been introduced into Australia until 1911 when it was introduced in Western Australia But optional preferential voting was used in Queensland after 1892rdquo Even so the Constitution that emerged from the Constitutional Conventions ldquodid not entrench the secret ballot compulsory voting preferential or proportional votingrdquo McGinty v Western Australia (1996) 186 CLR 140 at 283 per Gummow J All that was said (so far as presently relevant) was that the members of the House of Representatives were to be ldquodirectly chosen by the peoplerdquo section 24 that until the Parliament otherwise provides ldquothe qualification of electors of members of the House of Representatives shall be in each State that which is prescribed by the law of the Slate as the qualification of electors of the more numerous House of Parliament of the Staterdquo section 30 and that ldquoin the choosing of members each elector shall vote only oncerdquo section 30

The petitioner placed some emphasis on what was said by McHugh J in Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106 at 228-233 about ldquorepresentative governmentrdquo But as Brennan CJ pointed out in McGinty v Western Australia at 169 the expressions ldquorepresentative governmentrdquo and ldquorepresentative democracyrdquo are not found in the Constitution and although they are useful terms to describe the effect of ss 7 and 24 ldquo[i]t is logically impermissible to treat lsquorepresentative democracyrsquo as though it were contained in the Constitution to attribute to the term a meaning or content derived from sources extrinsic to the Constitution and then to invalidate a law for inconsistency with the meaning or content so attributedrdquo

The requirements that members be ldquodirectly chosenrdquo and that ldquoeach elector shall vote only oncerdquo do not preclude the Parliament from providing (as it has) for a compulsory preferential voting system Langer v The Commonwealth Soegemeier v Macklin (1985) 58 ALR 768 Under that system each elector casts but one expression of his or her choice of member in one electoral division The choice is expressed in a complex way but it remains a single expression of the will of that voter And perhaps more relevantly the voter cannot cast a vote in more than one electoral district as voters could in those Colonies that permitted plural voting related to property qualifications The voter votes only once

No doubt it is right to say as the petitioner does that the distribution of preferences requires electoral officers to undertake the process prescribed in those parts of s 274 which deal with that subject But the performance of those tasks does not mean that the member is not ldquodirectly chosenrdquo as that expression is used in s 24

The petition cannot succeed It should be dismissed

9 Implications of the Ditchburn Decisions

91 Senate Group Ticket Voting

911 As discussed in part 71 above in this submission it is not unusual for independent Senate candidates to belatedly discover generally at the time of nomination that they are not entitled to appear on the ballot paper as a group ldquoabove the linerdquo and thereby take advantage of the ticket voting system for the Senate This may give rise to some protest at the ldquofairnessrdquo of sections 211 and 211A of the Electoral Act and can result in petitions to the Court of Disputed Returns after the election on the grounds that the law is both unconstitutional and ldquounfairrdquo to independent candidates

912 In Ditchburn v AEO Qld (unreported) Justice Hayne has confirmed the decisions in McClure v AEC (1999) 73 ALJR 1086 in Abbotto v AEC (1997) 71 ALJR 675 and in McKenzie v The Commonwealth (1984) 59 ALJR 190 that the Senate group ticket voting system is not unconstitutional and that it is not for the Court to decide whether the Senate group voting system is ldquofairrdquo or ldquounfairrdquo to independent candidates

913 In Ditchburn v AEO Qld Justice Hayne dealt with the further contention that the Senate group ticket voting is contrary to section 7 of the Constitution which requires that senators be ldquodirectly chosen by the peoplerdquo His Honour said that he did not accept the contention that sections 211 and 211A of the Electoral Act ldquoprescribe a method of electing Senators which resembles an electoral college and where Senators are indirectly chosen by the people of the Staterdquo

914 Full Preferential Voting

915 In Ditchburn v DRO Herbert (unreported) it was contended that full preferential voting is contrary to section 24 of the Constitution which requires that members be ldquodirectly chosen by the peoplerdquo and section 30 of the Constitution which requires that ldquoin the choosing of members each elector shall vote only oncerdquo

916 Justice Hayne did not accept that full preferential voting under section 240 of the Electoral Act is contrary to section 24 of the Constitution which requires that members be ldquodirectly chosen by the peoplerdquo In coming to this decision His Honour relied on the decision of the High Court in Langer v The Commonwealth (1996) 186 CLR 302 In Langer the High Court held that section 240 of the Electoral Act is a valid law within sections 31 and 51(xxxvi) of the Constitution and not inconsistent with the requirements of section 24 of the Constitution Justice Hayne noted that the decision in Langer was consistent with the decisions in Judd v McKeon (1926) 38 CLR 380 and Faderson v Bridger (1971) 126 CLR 217

917 Further Justice Hayne did not accept that full preferential voting is contrary to section 30 of the Constitution which requires that ldquoin the choosing of members each elector shall vote only oncerdquo In coming to this decision Justice Hayne relied on Attorney-General (Cth) Ex rel McKinlay v The Commonwealth (1975) 135 CLR 1 McGinty v Western Australia (1996) 186 CLR 140 Langer v The Commonwealth (1996) 186 CLR 302 and Soegemeier v Macklin (1985) 58 ALR 768

918 His Honour noted that prior to Federation plural voting on the basis of property qualifications was allowed in Tasmania Western Australia and Queensland It was clear from the Debates at the 1891 Convention in Sydney that the question of plural voting was well in the minds of the members of the Constitutional Conventions from which the terms of the Constitution emerged and hence the phrase ldquoin the choosing of members each elector shall vote only oncerdquo It is notable in this context that the Constitution that emerged from the Constitutional Conventions did not entrench either the secret ballot compulsory voting preferential voting or proportional voting

919 His Honour concluded that under the full preferential voting system each elector casts but one expression of his or her choice of member in one electoral Division The choice is expressed in a complex way but it remains a single expression of the will of that voter That is at federal elections with full preferential voting the voter votes only once All that the Constitution appears to proscribe is plural voting based on property qualifications as was permitted in colonial times

10 Summary of Outcomes in the 1998 Election Petitions

bull The Court of Disputed Returns has jurisdiction to hear election petitions disputing the constitutional qualifications of candidates

bull The United Kingdom is a ldquoforeign powerrdquo under the terms of section 44(i) of the Constitution

bull Ms Heather Hill a elected candidate for the Senate in Queensland was disqualified under section 44(i) of the Constitution as a British subject at the time of her nomination

bull The Senate group voting system is a valid law of the Parliament under the terms of the Constitution including sections 7 and 24 which require that senators and members be ldquodirectly chosen by the peoplerdquo

bull It is not for the Court to decide whether or not the Senate group voting system is fair or unfair to independent candidates

bull There is no provision for class actions in election petitions and in any case electors can only dispute the elections for which they were entitled to vote

bull The Court will apply the law as provided by the Parliament within the terms of the Constitution and there is nothing to suggest that Royal Assent was not properly given to the Electoral Act and its amending Acts

bull Section 240 of the Electoral Act which provides for full preferential voting is a valid law within the terms of the Constitution including sections 7 and 24 which require that members and senators be ldquodirectly chosen by the peoplerdquo and sections 8 and 30 which require that ldquoeach elector shall vote only oncerdquo

ATTACHMENTS

Attachment 1

Sue v Hill (S1791998 Gleeson CJ 19 March 1999 unreported)

See attached

Attachment 2

Sue v Hill (1999) 73 ALJR 1016

See attached

Attachment 3

Extract from AEC submission No124 of 15 November 1993 re costs

432 During the hearing on 1 October 1993 on the question of costs Justice Gaudron made a number of observations on the ease with which election petitions which may have no legal merit can be lodged with the Court of Disputed Returns under the current provisions of the Commonwealth Electoral Act 1918 For example on page 54 of the transcript Justice Gaudron said the following

The Act is by no means of model of clarity as to who can bring petitions it sets it up so that a person can come without the benefit of legal advice which might deflect it In fact it discourages positively prohibits legal representation without leave so that the Act is virtually inviting people to bring petitions which have not had the benefit of legal analysis

433 Her Honour then appeared to agree with the proposition of Mr Gageler for the Commonwealth that whilst the $100 security for costs required under section 356 of the Act in order to lodge a petition may have been a deterrent to vexatious or frivolous petitioners when it was first legislated in 1902 (when it was 50 pounds) it can hardly be regarded as a meaningful deterrent these days

434 In discussing with Mr Gageler the scheme of the Act which appears to encourage unimpeded access to the Court of Disputed Returns by any and all petitioners Justice Gaudron said at page 55 of the transcript

Virtually unimpeded access and as you tell me five out of six [of the petitions] have failed One well knows that some of the grounds that have been advanced in these petitions - and I put Mr Hudsons to one side - have been grounds that one would think would not have survived legal advice

435 In reference to section 370 of the Act which provides that no party to the petition shall except by consent of all parties or by leave of the Court be represented by counsel or solicitor [and] in no case shall more than one counsel or solicitor appear on behalf of any party Justice Gaudron went on to say

But very rarely do you have a provision such as this - you do in some Acts but not commonly - no legal representation except by leave So what you are doing is you are in fact encouraging people to come to the Court with arguments that do not necessarily have a basis in law

436 And finally on page 58 of the transcript Justice Gaudron said

I was hoping maybe that the legislature might see fit to do something with respect to the provisions as they stand It is by no means a model of clarity is it that part of the Act

437 These comments from the Bench are directed to petitions that ldquowould not have survived legal advicerdquo that is vexatious andor frivolous petitions and not to the Hudson petition in particular as is obvious from Justice Gaudronrsquos comment that the ease of access to the Court for petitioners of limited means such as Mr Hudson is ldquocommendablerdquo (see paragraph 427 above)

438 If any review of the provisions of the Act relating to costs and legal representation were to be undertaken it would need to be in the context of the following considerations

439 For the average petitioner it costs a total of $900 in set fees and charges to lodge a petition made up of the $100 deposit as security for costs under section 356 of the Commonwealth Electoral Act 1918 and the $300 filing fee and the $500 hearing fee under regulations 4(1) and 5(1) respectively of the High Court of Australia (Fees) Regulations If a petitioner can provide a health care card or a health benefit card or provide other reasons acceptable to the High Court Registry that indicate financial constraints then the High Court Regulations allow the $800 High Court fees to be waived There is no waiver under the Commonwealth Electoral Act 1918 for the $100 deposit as security for costs

4310 In addition to these set fees and the deposit under Order 68 rule 3 of the High Court Rules forthwith after filing a petition the petitioner must arrange for the petition to be published in the Commonwealth Gazette and the relevant State Gazette and in the case of an election for the House of Representatives the petitioner must publish a notice giving details of the petition in a newspaper circulating in the relevant electoral Division Further under Order 68 rule 5 of the Rules the petitioner must 28 days after the filing of the petition serve a copy of the petition upon every person whose election or return is disputed by the petition These requirements under the High Court Rules for publication and service can clearly add up to a considerable financial burden to the petitioner

4311 The Commission has no difficulty with the fees service and advertising requirements of the High Court Rules in so far as they apply to petitions disputing elections The Commission does however agree with Justice Gaudron that the provisions in the Commonwealth Electoral Act 1918 relating to costs and legal representation are dated and inconsistent

4312 The history of the introduction in 1902 to 1905 of the provisions of the Commonwealth Electoral Act 1918 relating to costs and legal representation in the Court of Disputed Returns will not be canvassed in detail in this Submission However it is worth noting that the two Houses of Parliament were divided at that time over whether to legislate for a non-judicial parliamentary Elections and Qualifications Committee or a Court of Disputed Returns with full judicial powers to settle election disputes The primary cause of concern was the high cost of legal fees for respondents required to defend their election before a court against wealthy and possibly vexatious petitioners

4313 In the outcome a Court of Disputed Returns was agreed upon as being more impartial in the settling of election disputes than a Parliamentary committee However as a trade-off a provision was inserted in the Act limiting legal representation in order to protect elected parliamentarians from the costs of vexatious challenges Section 370 of the Commonwealth Electoral Act 1918 which provides that except by consent of all parties or by leave of the Court no party shall be represented by counsel or solicitor was therefore inserted by section 57 of the Commonwealth Electoral Act 1905

4314 As a corollary the deposit to be paid by the petitioner as security for costs was held at a low level in the expectation that court costs for the respondents would be contained by the limitation on legal representation The further trade-off was that by holding the deposit to a low level access to the court was not limited for the impecunious petitioner with a genuine dispute Section 195 of the Commonwealth

Electoral Act 1902 provided that the deposit for security for costs should be 50 pounds That amount has not substantially changed in the intervening 90 years and now stands at $100 in section 356 of the Act

4315 Despite the concerns of the early legislators to protect elected parliamentarians from wealthy and vexatious petitioners modern day realities are that respondents will rarely appear without legal representation and more often than not will hire a Queens Counsel whose fee is guaranteed from party or other sympathetic resources It is also unlikely that the court would decline to consent to such representation if there were to be any objection from the petitioner This suggests that section 370 of the Act limiting legal representation no longer serves any practical purpose

4316 The provision does not appear in any way to either advantage or disadvantage the petitioner The impecunious petitioner by obtaining waivers on fees and by appearing without legal representation has ready access to the court The problem that Justice Gaudron has highlighted is that petitioners are encouraged by the apparent limitation on legal representation to bring disputes to court which might never have survived proper legal advice

4317 If section 370 were to be deleted from the legislation then the logical nexus between that provision and section 356 which sets a low $100 as the petitionerrsquos deposit for security for costs would fall away However there are other provisions relating to costs in the Act sections 360 (1)(ix) 360(1)(4) 372 and 373 for example which would need to be considered as part of any general review of the issue of costs and legal representation that the Committee might recommend

Attachment 4

Extract from AEC submission No 96 of 23 October 1996 on Federal Court

61 During the course of the proceedings it appeared as if evidentiary matters might have to be resolved in the petition by the examination of declaration envelopes and the calling of witnesses This could have involved up to 1594 individual investigations The High Court sitting as the Court of Disputed Returns has made it clear on at least one recent occasion (the Webster v Deahm petition in 1993) that it is not amendable to dealing with such a load and would if such evidentiary matters were to be pressed refer the petition to the relevant State Supreme Court This option is available to the Court under section 354 of the CEA

62 However it became clear during proceedings in this petition that there was a preference by the Bench for the questions of law to be resolved by the High Court with only questions of evidence being determined by the Supreme Court rather than the whole of the petition being heard and determined by the Supreme Court It was also the preferred position of the AEC that if a petition were to be split and any questions of evidence were to be remitted to the Supreme Court then the evidentiary determinations should be sent back to the High Court for final decision on the appropriate relief

63 It is the view of the AEC that the High Court and not a Supreme Court of a State should make final determinations on the proper outcome of challenges to a federal election for example whether or not a federal election should be voided The interpretation of section 354 of the CEA by the Chief Justice on 15 August 1996 means that it is not possible for the evidentiary and determinative matters in a petition to be ldquosplitrdquo between the High Court and a Supreme Court under the legislation as it currently standshellip

73 The Snowdon petition also gave rise to a procedural issue about the ldquosplittingrdquo of petitions and the remitting of questions of evidence from the High Court to inferior courts

The AEC recommends that section 354 of the CEA be amended to enable the High Court to remit aspects of a petition to a Supreme Court but so that the High Court retains final jurisdiction on relief

Attachment 5

McClure v AEC (1999) 73 ALJR 1086

See attached

not set out facts which would justify any relief under the Act or in the alternative that it be stayed on the ground either that there is no reasonable or probable cause of action or suit or that the proceeding is an abuse of the process of the Court

Section 359 of he Act provides ldquoThe Electoral Commission shall be entitled by leave of the Court of Disputed Returns to enter an appearance in any proceedings in which the validity of any election or return is disputed and to be represented and heard thereon and in such case shall be deemed to be a party respondent to the petitionrdquo

No reason was offered why the Commission should not have the leave it seeks and accordingly leave was granted Because I consider that the petition cannot succeed and should be dismissed I need form no view on whether the respondent named in the petition was ldquoimproperly joinedrdquo within the meaning of O 16 r 4 of the Rules

The central complaint of the petitioner relates to what has come to be known as the ldquoabove the linerdquo and ldquobelow the linerdquo voting or ldquogroup votingrdquo system in Senate elections That is dealt with in ss 211 211A 239 and 272 of the Act and finds reflection in the provisions of s 273 governing scrutiny of votes in Senate electionshellip

Section 211 of the Act provides (in effect) that where the names of candidates nominated in a Senate election are included in a group the candidates may lodge a written statement that they wish voters in the election to indicate their preferences in relation to all the candidates in the election in an order (or any of up to three different orders) specified in the statement being an order that gives preferences to the candidates lodging the statement before any other candidate Section 211A of the Act makes like provision for candidates who are Senators or if there has been a dissolution of the Senate were Senators immediately before the dissolution and who are not members of a group There is no like provision for other candidates not part of a group

The constitutional validity of provisions like s 211 has twice been considered shyin McKenzie v Commonwealth (1984) 59 ALJR 190 57 ALR 747 and in Abbotto v Australian Electoral Commission 72 (1997) 71 ALJR 675 144 ALR 352 At the time of McKenzie the Act was cast in slightly different terms and did not contain s 211A Gibbs CJ rejected a submission that the group voting system then provided for the election of Senators was contrary to s 7 or s 16 of the Constitution shy

Section 7 provides (so far as relevant) ldquoThe Senate shall be composed of senators for each Sate directly chosen by the people of the State voting until the Parliament otherwise provides as one electoraterdquo

Section 16 provides ldquoThe qualifications of a senator shall be the same as those of a member of the House of Representativesrdquo

- and held that the provisions then in force did not lsquoso [offend] democratic principles as to render the sections beyond the power of the Parliament to enact (1984) 59 ALJR 190 at 191 57 ALIl 747 at 749 In Abbotto Dawson J held that there was no substance to the contention that the voting system provided for by ss 211 and 211A contravened s 10 of the Constitution

Section 10 provides ldquountil the Parliament otherwise provides but subject to this Constitution the laws in force in each State for the time being relating to elections for the more numerous House of the Parliament of tile State shall as nearly as practicable apply to elections of senators for the Staterdquo

The present petition suggests that the provisions of the Act dealing with above the line and below the line voting conflict with what was held by the Court in Attorney-General (Cth) Ex rel McKinlay v The Commonwealth (1975) 135 CLR 1 Particular reference was made to those parts of the reasons of Gibbs J (at 44) Stephen J (at 56) Mason J (at 61) and Murphy J (at 68) in which their Honours consider what is meant in s 24 of the Constitution when it says that ldquothe House of Representatives shall be composed of members directly chosen by the people of the Commonwealthrdquo

Like s 24 s 7 of the Constitution also uses the expression ldquodirectly chosen by the peoplerdquo and as Stephen J said in McKinlay (at 56) ldquoEach [s 7 and s 24] calls for a system of representative democracy in the sense that the Houses of the legislature are to be composed of members whom the people choose in each the method of choice is required to be that of direct choice there is to be no interposition of an electoral college between the chooser and the chosenrdquo

The petitioner contended that neither McKenzie v The Commonwealth nor Abbotto v Australian Electoral Commission can be read as dealing directly with the arguments he now seeks to advance I think the better view is that Gibbs CJ did consider these matters in McKenzie and that the decision of Dawson J in Abbotto is inconsistent with the petitionerrsquos contentions

However that may be as I said in McClure I do not accept that the provisions for above the line and below the line voting in Senate elections are contrary to s 7 of the Constitution See also McKenzie v The Commonwealth (1987) 59 ALJR 190 57 ALR 747 Abbotto v Australian Electoral Commission (1997) 71 ALJR 675 144 ALR 352 In particular l do not accept the contention that those provisions ldquoprescribe a method of electing Senators which resembles an electoral college and where Senators are indirectly chosen by the people of the Staterdquo

The petition cannot succeed It should be dismissed

8112 The second Ditchburn petition was heard and decided on the same day

82 The Ditchburn v DRO Herbert Petition

821 On 3 October Mr Donald Ditchburn an elector for the Division of Herbert in Queensland filed a petition in the Brisbane Registry of the High Court disputing the election of the Member for Herbert in Queensland In his petition Mr Ditchburn asserted his entitlement to vote at the election and asserted the following grounds for his petition (inter alia)

hellipElectors (like me) whose first preference for a minor party candidate was initially counted as their vote also had their ballot papers counted for their second third or fourth etc preference candidates and those candidates substituted by the DRO as the electorsrsquo alternative votes

As an electorrsquos vote can be ascribed to any candidate in hisher order of preference it follows that the elector must simultaneously vote for all candidates indicated on his ballot paper Under this construction if electors only vote for their first preference subsequent preferences should not be counted

Thus Section 274 of the Act has the effect of making the preferences each elector indicates pursuant to Section 240(1)(b) into multiple votes for the one vacant seat

This construction conflicts with the express and implied provisions of Section 30 of the Constitution of the Commonwealth of Australia which requires in part ldquobut in the choosing of members each elector shall vote only oncerdquo

But if Section 274 of the Act is construed as requiring the Divisional Returning Officer to ldquotransferrdquo the first preference votes of excluded candidates to opponents the DRO acts as an intermediary (or agent) in the votersrsquo choosing of members of the House of Representatives

The intervention of the DRO actually determines which of any electors preferences is finally accepted in the count of votes and thus determines which candidate the elector actually chooses

Consequently the intervention or agency of an officer of the Crown in the choosing of members means that such members are indirectly chosen by electors whose votes were transferred from excluded candidates This requirement of the Act conflicts with the first provision of Section 24 of the Constitution

ldquo24 The House of Representatives shall be composed of members directly chosen by the people of the Commonwealth rdquo

As Subsections 240(1)(b) 240(2) and 274(7) para (d) 274(7AA) 274(7AB) and 274(7AC) of the Commonwealth Electoral Act 1918 either conflict with Section 24 or with Section 30 of the Constitution of the Commonwealth (or with both) those provisions of the Act should be ultra vires Parliamentsrsquo legislative power under Section 31 and Section 51(xxxvi)

(It is not contended that MHRrsquos elected by gaining an absolute majority of first preference votes pursuant to Subsection 240(1)(a) of the Act are affected)

The facts and inferences referred to above also apply to comparable legislation with respect to the election of Senators filling the final Senate positions for each State Thus Subsection 239(1)(b) and Section 273 Subsections (13) (13AA) (13A) (13B) (13C) (14) (15) and (16) of the Commonwealth Electoral Act 1918 conflict with either Section 7 or Section 8 of the Constitution of the Commonwealth These provisions of the Act should similarly be ultra vires Sections 9 10 and 51(xxxvi) of the Constitutionhellip

822 The petitioner Mr Ditchburn asked the Court for the following orders

1 A declaration as to the validity of Subsections 240(1)(b) 240(2) and 274(7) para (d) 274(7AA) 274(7AB) and 274(7AC) of the Commonwealth Electoral Act 1918

2 An order to annul the election of the Member for Herbert declared elected by the Divisional Returning Officer for Herbert pursuant to the provisions of the Act referred to in 1 above

823 On 22 and 31 March 1999 a summons and affidavit was filed with the Court by Mr Maurice Swan of the Australian Government Solicitor on behalf of the AEC seeking orders that the AEC have leave to enter an appearance in the proceedings that the name of the respondent (DRO Herbert) be struck out and that the petition be dismissed or that proceedings be stayed on the grounds that there was no reasonable or probable cause of action or suit or that the proceeding is an abuse of the process of the Court

824 At the hearing on 22 July 1999 in Canberra before Justice Hayne of the High Court sitting as the Court of Disputed Returns Mr Gageler of counsel appeared for the AEC with Mr Geoffrey McCarthy and Mr Ditchburn represented himself on video-link

825 Mr Ditchburn did not oppose the application by the AEC to enter an appearance and leave was granted by the Court Mr Gageler for the AEC relied on the decision of the Court in Langer v The Commonwealth (1996) 186 CLR 302 where all members of the Court including Justice Dawson who otherwise dissented held section 240 of the Electoral Act valid

826 In reply the petitioner submitted that his petition was different in principle from the matters considered in Langer because his petition relied on the word ldquodirectlyrdquo appearing in section 24 of the Constitution This he submitted was not a matter raised or considered by the Court in Langer Justice Hayne listened to the petitioner at length but frequently commented that the issues being raised by the petitioner were matters of political science not constitutional validity His Honour then reserved his decision

827 Later on the same day 22 July 1999 Justice Hayne delivered his decision ordering that the petition be dismissed and that the petitioner Mr Ditchburn pay the costs of the AEC In his decision in Ditchburn v DRO Herbert (unreported) Justice Hayne said the following

On 7 December 1998 Donald Kenneth Ditchburn filed an Election Petition pursuant to Div 1 of Pt XXII of the Electoral Act (Cth) (ldquothe Actrdquo) The petition was said to concern ldquothe election for the House of Representatives seat for the Division of Herbert held on Saturday 3 October 1998rdquo It alleged that the petitioner is enrolled in the Federal Division of Herbert in the State of Queensland and it appears from other allegations in the petition that he was eligible to vote in that Division in the election held on 3 October 1998

The Australian Electoral Commission seeks leave to enter an appearance in the proceeding and to be represented and be heard It seeks an order under O 16 r 4 of the High Court Rules that the name of the respondent to the petition be struck out It also seeks an order dismissing the petition or staying proceedings on the petition on the ground either that there is no reasonable or probable cause of action or suit or that the proceeding is an abuse of the process of the Court

As was the case in the other electoral petition which was instituted by Mr Ditchburn and with which I have dealt today Ditchburn v Australian Electoral Officer for Queensland [1999] HCA no reason was offered why the Commission should not have the leave it sought (under s 359 of the Act) and accordingly leave was given for it to appear be represented and heard on the petition Again however I need form no view on whether the respondent named in the petition was ldquoimproperly joinedrdquo within the meaning of O 16 r 4 of the Rules

The petitioner seeks to contend that the system of preferential voting for candidates in House of Representatives elections is contrary to the requirements of s 24 of the Constitution that the members of that House be ldquodirectly chosen by the peoplerdquo and s 30 of the Constitution that ldquoin the choosing of members each elector shall vole only oncerdquo In particular he alleges that ss 240(1)(b) 240(2) 274(7)(d) 274(7AA) 274(7AB) and 274(7AC) of the Act are invalid and he seeks a declaration to that effect and ldquoan order to annul the election of the Member for Herbert declared elected by the Divisional Returning Officer for Herbertrdquo pursuant to these provisionshellip

In my opinion these arguments [in the petition] are not tenable Some other arguments not raised by the petition were mentioned by the petitioner in oral argument They were by and large arguments of a political rather than legal nature Even if open to the petitioner sections 355 358 they do not assist in resolving the consyitulional issues that the petitioner sought to raise

In Langer v The Commonwealth (1996) 186 CLR 302 at least five members of the Court held at 316-317 per Brennan CJ 333 per Toohey and Gaudron JJ 348-349 per Gummow J that s 240 of the Act was a valid law within ss 31 and 51(xxxvi) of the Constitution and was not inconsistent with the requirement of s 24 that the House of Representatives shall be comprised of members ldquodirectly chosen by the people of the Commonwealthrdquo See also Judd v McKeon (1926) 38 CLR 380 Faderson v Bridger (1971) 126 CLR 217 And it may well be that the other two members of the Court were of the same opinion at 323 per Dawson J 340-341 per McHugh J The argument which the petitioner seeks to advance is at least to the extent that he relies on s 24 an argument which I am bound to hold would fail Even if Langer does not decide the further point on which the petitioner seeks to rely (that under the

preferential voting system a voter votes more than once contrary to s 30) that contention is one which must fail

Prior to Federation plural voting related to property qualification was allowed in Tasmania Western Australia and Queensland Attorney-General (Cth) Ex rel McKinlay v The Commonwealth (1975) 135 CLR 1 at 19 per Barwick CJ McGinty v Western Australia (1996) 186 CLR 140 at 281-282 per Gummow J It is clear from the Debates at the 1891 Convention in Sydney that the question of plural voting was well in the minds of the members of the Constitutional Conventions from which the terms of the Constitution emerged Official Record of the Debates of the Australasian Federal Convention (Sydney) 1891 vol 1 613-617 But the plural voting then under consideration permitted a voter to cast more than one expression of his or (in South Australia and Western Australia) her choice of candidate

The preferential voting system was provided for House of Representatives elections by s 124 of the Commonwealth Electoral Act 1918 and for the Senate by s 7 of the Commonwealth Electoral Act 1919 As McHugh J noted in Langer v The Commonwealth at 342 ldquoCompulsory preferential voting does not appear to have been introduced into Australia until 1911 when it was introduced in Western Australia But optional preferential voting was used in Queensland after 1892rdquo Even so the Constitution that emerged from the Constitutional Conventions ldquodid not entrench the secret ballot compulsory voting preferential or proportional votingrdquo McGinty v Western Australia (1996) 186 CLR 140 at 283 per Gummow J All that was said (so far as presently relevant) was that the members of the House of Representatives were to be ldquodirectly chosen by the peoplerdquo section 24 that until the Parliament otherwise provides ldquothe qualification of electors of members of the House of Representatives shall be in each State that which is prescribed by the law of the Slate as the qualification of electors of the more numerous House of Parliament of the Staterdquo section 30 and that ldquoin the choosing of members each elector shall vote only oncerdquo section 30

The petitioner placed some emphasis on what was said by McHugh J in Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106 at 228-233 about ldquorepresentative governmentrdquo But as Brennan CJ pointed out in McGinty v Western Australia at 169 the expressions ldquorepresentative governmentrdquo and ldquorepresentative democracyrdquo are not found in the Constitution and although they are useful terms to describe the effect of ss 7 and 24 ldquo[i]t is logically impermissible to treat lsquorepresentative democracyrsquo as though it were contained in the Constitution to attribute to the term a meaning or content derived from sources extrinsic to the Constitution and then to invalidate a law for inconsistency with the meaning or content so attributedrdquo

The requirements that members be ldquodirectly chosenrdquo and that ldquoeach elector shall vote only oncerdquo do not preclude the Parliament from providing (as it has) for a compulsory preferential voting system Langer v The Commonwealth Soegemeier v Macklin (1985) 58 ALR 768 Under that system each elector casts but one expression of his or her choice of member in one electoral division The choice is expressed in a complex way but it remains a single expression of the will of that voter And perhaps more relevantly the voter cannot cast a vote in more than one electoral district as voters could in those Colonies that permitted plural voting related to property qualifications The voter votes only once

No doubt it is right to say as the petitioner does that the distribution of preferences requires electoral officers to undertake the process prescribed in those parts of s 274 which deal with that subject But the performance of those tasks does not mean that the member is not ldquodirectly chosenrdquo as that expression is used in s 24

The petition cannot succeed It should be dismissed

9 Implications of the Ditchburn Decisions

91 Senate Group Ticket Voting

911 As discussed in part 71 above in this submission it is not unusual for independent Senate candidates to belatedly discover generally at the time of nomination that they are not entitled to appear on the ballot paper as a group ldquoabove the linerdquo and thereby take advantage of the ticket voting system for the Senate This may give rise to some protest at the ldquofairnessrdquo of sections 211 and 211A of the Electoral Act and can result in petitions to the Court of Disputed Returns after the election on the grounds that the law is both unconstitutional and ldquounfairrdquo to independent candidates

912 In Ditchburn v AEO Qld (unreported) Justice Hayne has confirmed the decisions in McClure v AEC (1999) 73 ALJR 1086 in Abbotto v AEC (1997) 71 ALJR 675 and in McKenzie v The Commonwealth (1984) 59 ALJR 190 that the Senate group ticket voting system is not unconstitutional and that it is not for the Court to decide whether the Senate group voting system is ldquofairrdquo or ldquounfairrdquo to independent candidates

913 In Ditchburn v AEO Qld Justice Hayne dealt with the further contention that the Senate group ticket voting is contrary to section 7 of the Constitution which requires that senators be ldquodirectly chosen by the peoplerdquo His Honour said that he did not accept the contention that sections 211 and 211A of the Electoral Act ldquoprescribe a method of electing Senators which resembles an electoral college and where Senators are indirectly chosen by the people of the Staterdquo

914 Full Preferential Voting

915 In Ditchburn v DRO Herbert (unreported) it was contended that full preferential voting is contrary to section 24 of the Constitution which requires that members be ldquodirectly chosen by the peoplerdquo and section 30 of the Constitution which requires that ldquoin the choosing of members each elector shall vote only oncerdquo

916 Justice Hayne did not accept that full preferential voting under section 240 of the Electoral Act is contrary to section 24 of the Constitution which requires that members be ldquodirectly chosen by the peoplerdquo In coming to this decision His Honour relied on the decision of the High Court in Langer v The Commonwealth (1996) 186 CLR 302 In Langer the High Court held that section 240 of the Electoral Act is a valid law within sections 31 and 51(xxxvi) of the Constitution and not inconsistent with the requirements of section 24 of the Constitution Justice Hayne noted that the decision in Langer was consistent with the decisions in Judd v McKeon (1926) 38 CLR 380 and Faderson v Bridger (1971) 126 CLR 217

917 Further Justice Hayne did not accept that full preferential voting is contrary to section 30 of the Constitution which requires that ldquoin the choosing of members each elector shall vote only oncerdquo In coming to this decision Justice Hayne relied on Attorney-General (Cth) Ex rel McKinlay v The Commonwealth (1975) 135 CLR 1 McGinty v Western Australia (1996) 186 CLR 140 Langer v The Commonwealth (1996) 186 CLR 302 and Soegemeier v Macklin (1985) 58 ALR 768

918 His Honour noted that prior to Federation plural voting on the basis of property qualifications was allowed in Tasmania Western Australia and Queensland It was clear from the Debates at the 1891 Convention in Sydney that the question of plural voting was well in the minds of the members of the Constitutional Conventions from which the terms of the Constitution emerged and hence the phrase ldquoin the choosing of members each elector shall vote only oncerdquo It is notable in this context that the Constitution that emerged from the Constitutional Conventions did not entrench either the secret ballot compulsory voting preferential voting or proportional voting

919 His Honour concluded that under the full preferential voting system each elector casts but one expression of his or her choice of member in one electoral Division The choice is expressed in a complex way but it remains a single expression of the will of that voter That is at federal elections with full preferential voting the voter votes only once All that the Constitution appears to proscribe is plural voting based on property qualifications as was permitted in colonial times

10 Summary of Outcomes in the 1998 Election Petitions

bull The Court of Disputed Returns has jurisdiction to hear election petitions disputing the constitutional qualifications of candidates

bull The United Kingdom is a ldquoforeign powerrdquo under the terms of section 44(i) of the Constitution

bull Ms Heather Hill a elected candidate for the Senate in Queensland was disqualified under section 44(i) of the Constitution as a British subject at the time of her nomination

bull The Senate group voting system is a valid law of the Parliament under the terms of the Constitution including sections 7 and 24 which require that senators and members be ldquodirectly chosen by the peoplerdquo

bull It is not for the Court to decide whether or not the Senate group voting system is fair or unfair to independent candidates

bull There is no provision for class actions in election petitions and in any case electors can only dispute the elections for which they were entitled to vote

bull The Court will apply the law as provided by the Parliament within the terms of the Constitution and there is nothing to suggest that Royal Assent was not properly given to the Electoral Act and its amending Acts

bull Section 240 of the Electoral Act which provides for full preferential voting is a valid law within the terms of the Constitution including sections 7 and 24 which require that members and senators be ldquodirectly chosen by the peoplerdquo and sections 8 and 30 which require that ldquoeach elector shall vote only oncerdquo

ATTACHMENTS

Attachment 1

Sue v Hill (S1791998 Gleeson CJ 19 March 1999 unreported)

See attached

Attachment 2

Sue v Hill (1999) 73 ALJR 1016

See attached

Attachment 3

Extract from AEC submission No124 of 15 November 1993 re costs

432 During the hearing on 1 October 1993 on the question of costs Justice Gaudron made a number of observations on the ease with which election petitions which may have no legal merit can be lodged with the Court of Disputed Returns under the current provisions of the Commonwealth Electoral Act 1918 For example on page 54 of the transcript Justice Gaudron said the following

The Act is by no means of model of clarity as to who can bring petitions it sets it up so that a person can come without the benefit of legal advice which might deflect it In fact it discourages positively prohibits legal representation without leave so that the Act is virtually inviting people to bring petitions which have not had the benefit of legal analysis

433 Her Honour then appeared to agree with the proposition of Mr Gageler for the Commonwealth that whilst the $100 security for costs required under section 356 of the Act in order to lodge a petition may have been a deterrent to vexatious or frivolous petitioners when it was first legislated in 1902 (when it was 50 pounds) it can hardly be regarded as a meaningful deterrent these days

434 In discussing with Mr Gageler the scheme of the Act which appears to encourage unimpeded access to the Court of Disputed Returns by any and all petitioners Justice Gaudron said at page 55 of the transcript

Virtually unimpeded access and as you tell me five out of six [of the petitions] have failed One well knows that some of the grounds that have been advanced in these petitions - and I put Mr Hudsons to one side - have been grounds that one would think would not have survived legal advice

435 In reference to section 370 of the Act which provides that no party to the petition shall except by consent of all parties or by leave of the Court be represented by counsel or solicitor [and] in no case shall more than one counsel or solicitor appear on behalf of any party Justice Gaudron went on to say

But very rarely do you have a provision such as this - you do in some Acts but not commonly - no legal representation except by leave So what you are doing is you are in fact encouraging people to come to the Court with arguments that do not necessarily have a basis in law

436 And finally on page 58 of the transcript Justice Gaudron said

I was hoping maybe that the legislature might see fit to do something with respect to the provisions as they stand It is by no means a model of clarity is it that part of the Act

437 These comments from the Bench are directed to petitions that ldquowould not have survived legal advicerdquo that is vexatious andor frivolous petitions and not to the Hudson petition in particular as is obvious from Justice Gaudronrsquos comment that the ease of access to the Court for petitioners of limited means such as Mr Hudson is ldquocommendablerdquo (see paragraph 427 above)

438 If any review of the provisions of the Act relating to costs and legal representation were to be undertaken it would need to be in the context of the following considerations

439 For the average petitioner it costs a total of $900 in set fees and charges to lodge a petition made up of the $100 deposit as security for costs under section 356 of the Commonwealth Electoral Act 1918 and the $300 filing fee and the $500 hearing fee under regulations 4(1) and 5(1) respectively of the High Court of Australia (Fees) Regulations If a petitioner can provide a health care card or a health benefit card or provide other reasons acceptable to the High Court Registry that indicate financial constraints then the High Court Regulations allow the $800 High Court fees to be waived There is no waiver under the Commonwealth Electoral Act 1918 for the $100 deposit as security for costs

4310 In addition to these set fees and the deposit under Order 68 rule 3 of the High Court Rules forthwith after filing a petition the petitioner must arrange for the petition to be published in the Commonwealth Gazette and the relevant State Gazette and in the case of an election for the House of Representatives the petitioner must publish a notice giving details of the petition in a newspaper circulating in the relevant electoral Division Further under Order 68 rule 5 of the Rules the petitioner must 28 days after the filing of the petition serve a copy of the petition upon every person whose election or return is disputed by the petition These requirements under the High Court Rules for publication and service can clearly add up to a considerable financial burden to the petitioner

4311 The Commission has no difficulty with the fees service and advertising requirements of the High Court Rules in so far as they apply to petitions disputing elections The Commission does however agree with Justice Gaudron that the provisions in the Commonwealth Electoral Act 1918 relating to costs and legal representation are dated and inconsistent

4312 The history of the introduction in 1902 to 1905 of the provisions of the Commonwealth Electoral Act 1918 relating to costs and legal representation in the Court of Disputed Returns will not be canvassed in detail in this Submission However it is worth noting that the two Houses of Parliament were divided at that time over whether to legislate for a non-judicial parliamentary Elections and Qualifications Committee or a Court of Disputed Returns with full judicial powers to settle election disputes The primary cause of concern was the high cost of legal fees for respondents required to defend their election before a court against wealthy and possibly vexatious petitioners

4313 In the outcome a Court of Disputed Returns was agreed upon as being more impartial in the settling of election disputes than a Parliamentary committee However as a trade-off a provision was inserted in the Act limiting legal representation in order to protect elected parliamentarians from the costs of vexatious challenges Section 370 of the Commonwealth Electoral Act 1918 which provides that except by consent of all parties or by leave of the Court no party shall be represented by counsel or solicitor was therefore inserted by section 57 of the Commonwealth Electoral Act 1905

4314 As a corollary the deposit to be paid by the petitioner as security for costs was held at a low level in the expectation that court costs for the respondents would be contained by the limitation on legal representation The further trade-off was that by holding the deposit to a low level access to the court was not limited for the impecunious petitioner with a genuine dispute Section 195 of the Commonwealth

Electoral Act 1902 provided that the deposit for security for costs should be 50 pounds That amount has not substantially changed in the intervening 90 years and now stands at $100 in section 356 of the Act

4315 Despite the concerns of the early legislators to protect elected parliamentarians from wealthy and vexatious petitioners modern day realities are that respondents will rarely appear without legal representation and more often than not will hire a Queens Counsel whose fee is guaranteed from party or other sympathetic resources It is also unlikely that the court would decline to consent to such representation if there were to be any objection from the petitioner This suggests that section 370 of the Act limiting legal representation no longer serves any practical purpose

4316 The provision does not appear in any way to either advantage or disadvantage the petitioner The impecunious petitioner by obtaining waivers on fees and by appearing without legal representation has ready access to the court The problem that Justice Gaudron has highlighted is that petitioners are encouraged by the apparent limitation on legal representation to bring disputes to court which might never have survived proper legal advice

4317 If section 370 were to be deleted from the legislation then the logical nexus between that provision and section 356 which sets a low $100 as the petitionerrsquos deposit for security for costs would fall away However there are other provisions relating to costs in the Act sections 360 (1)(ix) 360(1)(4) 372 and 373 for example which would need to be considered as part of any general review of the issue of costs and legal representation that the Committee might recommend

Attachment 4

Extract from AEC submission No 96 of 23 October 1996 on Federal Court

61 During the course of the proceedings it appeared as if evidentiary matters might have to be resolved in the petition by the examination of declaration envelopes and the calling of witnesses This could have involved up to 1594 individual investigations The High Court sitting as the Court of Disputed Returns has made it clear on at least one recent occasion (the Webster v Deahm petition in 1993) that it is not amendable to dealing with such a load and would if such evidentiary matters were to be pressed refer the petition to the relevant State Supreme Court This option is available to the Court under section 354 of the CEA

62 However it became clear during proceedings in this petition that there was a preference by the Bench for the questions of law to be resolved by the High Court with only questions of evidence being determined by the Supreme Court rather than the whole of the petition being heard and determined by the Supreme Court It was also the preferred position of the AEC that if a petition were to be split and any questions of evidence were to be remitted to the Supreme Court then the evidentiary determinations should be sent back to the High Court for final decision on the appropriate relief

63 It is the view of the AEC that the High Court and not a Supreme Court of a State should make final determinations on the proper outcome of challenges to a federal election for example whether or not a federal election should be voided The interpretation of section 354 of the CEA by the Chief Justice on 15 August 1996 means that it is not possible for the evidentiary and determinative matters in a petition to be ldquosplitrdquo between the High Court and a Supreme Court under the legislation as it currently standshellip

73 The Snowdon petition also gave rise to a procedural issue about the ldquosplittingrdquo of petitions and the remitting of questions of evidence from the High Court to inferior courts

The AEC recommends that section 354 of the CEA be amended to enable the High Court to remit aspects of a petition to a Supreme Court but so that the High Court retains final jurisdiction on relief

Attachment 5

McClure v AEC (1999) 73 ALJR 1086

See attached

Section 10 provides ldquountil the Parliament otherwise provides but subject to this Constitution the laws in force in each State for the time being relating to elections for the more numerous House of the Parliament of tile State shall as nearly as practicable apply to elections of senators for the Staterdquo

The present petition suggests that the provisions of the Act dealing with above the line and below the line voting conflict with what was held by the Court in Attorney-General (Cth) Ex rel McKinlay v The Commonwealth (1975) 135 CLR 1 Particular reference was made to those parts of the reasons of Gibbs J (at 44) Stephen J (at 56) Mason J (at 61) and Murphy J (at 68) in which their Honours consider what is meant in s 24 of the Constitution when it says that ldquothe House of Representatives shall be composed of members directly chosen by the people of the Commonwealthrdquo

Like s 24 s 7 of the Constitution also uses the expression ldquodirectly chosen by the peoplerdquo and as Stephen J said in McKinlay (at 56) ldquoEach [s 7 and s 24] calls for a system of representative democracy in the sense that the Houses of the legislature are to be composed of members whom the people choose in each the method of choice is required to be that of direct choice there is to be no interposition of an electoral college between the chooser and the chosenrdquo

The petitioner contended that neither McKenzie v The Commonwealth nor Abbotto v Australian Electoral Commission can be read as dealing directly with the arguments he now seeks to advance I think the better view is that Gibbs CJ did consider these matters in McKenzie and that the decision of Dawson J in Abbotto is inconsistent with the petitionerrsquos contentions

However that may be as I said in McClure I do not accept that the provisions for above the line and below the line voting in Senate elections are contrary to s 7 of the Constitution See also McKenzie v The Commonwealth (1987) 59 ALJR 190 57 ALR 747 Abbotto v Australian Electoral Commission (1997) 71 ALJR 675 144 ALR 352 In particular l do not accept the contention that those provisions ldquoprescribe a method of electing Senators which resembles an electoral college and where Senators are indirectly chosen by the people of the Staterdquo

The petition cannot succeed It should be dismissed

8112 The second Ditchburn petition was heard and decided on the same day

82 The Ditchburn v DRO Herbert Petition

821 On 3 October Mr Donald Ditchburn an elector for the Division of Herbert in Queensland filed a petition in the Brisbane Registry of the High Court disputing the election of the Member for Herbert in Queensland In his petition Mr Ditchburn asserted his entitlement to vote at the election and asserted the following grounds for his petition (inter alia)

hellipElectors (like me) whose first preference for a minor party candidate was initially counted as their vote also had their ballot papers counted for their second third or fourth etc preference candidates and those candidates substituted by the DRO as the electorsrsquo alternative votes

As an electorrsquos vote can be ascribed to any candidate in hisher order of preference it follows that the elector must simultaneously vote for all candidates indicated on his ballot paper Under this construction if electors only vote for their first preference subsequent preferences should not be counted

Thus Section 274 of the Act has the effect of making the preferences each elector indicates pursuant to Section 240(1)(b) into multiple votes for the one vacant seat

This construction conflicts with the express and implied provisions of Section 30 of the Constitution of the Commonwealth of Australia which requires in part ldquobut in the choosing of members each elector shall vote only oncerdquo

But if Section 274 of the Act is construed as requiring the Divisional Returning Officer to ldquotransferrdquo the first preference votes of excluded candidates to opponents the DRO acts as an intermediary (or agent) in the votersrsquo choosing of members of the House of Representatives

The intervention of the DRO actually determines which of any electors preferences is finally accepted in the count of votes and thus determines which candidate the elector actually chooses

Consequently the intervention or agency of an officer of the Crown in the choosing of members means that such members are indirectly chosen by electors whose votes were transferred from excluded candidates This requirement of the Act conflicts with the first provision of Section 24 of the Constitution

ldquo24 The House of Representatives shall be composed of members directly chosen by the people of the Commonwealth rdquo

As Subsections 240(1)(b) 240(2) and 274(7) para (d) 274(7AA) 274(7AB) and 274(7AC) of the Commonwealth Electoral Act 1918 either conflict with Section 24 or with Section 30 of the Constitution of the Commonwealth (or with both) those provisions of the Act should be ultra vires Parliamentsrsquo legislative power under Section 31 and Section 51(xxxvi)

(It is not contended that MHRrsquos elected by gaining an absolute majority of first preference votes pursuant to Subsection 240(1)(a) of the Act are affected)

The facts and inferences referred to above also apply to comparable legislation with respect to the election of Senators filling the final Senate positions for each State Thus Subsection 239(1)(b) and Section 273 Subsections (13) (13AA) (13A) (13B) (13C) (14) (15) and (16) of the Commonwealth Electoral Act 1918 conflict with either Section 7 or Section 8 of the Constitution of the Commonwealth These provisions of the Act should similarly be ultra vires Sections 9 10 and 51(xxxvi) of the Constitutionhellip

822 The petitioner Mr Ditchburn asked the Court for the following orders

1 A declaration as to the validity of Subsections 240(1)(b) 240(2) and 274(7) para (d) 274(7AA) 274(7AB) and 274(7AC) of the Commonwealth Electoral Act 1918

2 An order to annul the election of the Member for Herbert declared elected by the Divisional Returning Officer for Herbert pursuant to the provisions of the Act referred to in 1 above

823 On 22 and 31 March 1999 a summons and affidavit was filed with the Court by Mr Maurice Swan of the Australian Government Solicitor on behalf of the AEC seeking orders that the AEC have leave to enter an appearance in the proceedings that the name of the respondent (DRO Herbert) be struck out and that the petition be dismissed or that proceedings be stayed on the grounds that there was no reasonable or probable cause of action or suit or that the proceeding is an abuse of the process of the Court

824 At the hearing on 22 July 1999 in Canberra before Justice Hayne of the High Court sitting as the Court of Disputed Returns Mr Gageler of counsel appeared for the AEC with Mr Geoffrey McCarthy and Mr Ditchburn represented himself on video-link

825 Mr Ditchburn did not oppose the application by the AEC to enter an appearance and leave was granted by the Court Mr Gageler for the AEC relied on the decision of the Court in Langer v The Commonwealth (1996) 186 CLR 302 where all members of the Court including Justice Dawson who otherwise dissented held section 240 of the Electoral Act valid

826 In reply the petitioner submitted that his petition was different in principle from the matters considered in Langer because his petition relied on the word ldquodirectlyrdquo appearing in section 24 of the Constitution This he submitted was not a matter raised or considered by the Court in Langer Justice Hayne listened to the petitioner at length but frequently commented that the issues being raised by the petitioner were matters of political science not constitutional validity His Honour then reserved his decision

827 Later on the same day 22 July 1999 Justice Hayne delivered his decision ordering that the petition be dismissed and that the petitioner Mr Ditchburn pay the costs of the AEC In his decision in Ditchburn v DRO Herbert (unreported) Justice Hayne said the following

On 7 December 1998 Donald Kenneth Ditchburn filed an Election Petition pursuant to Div 1 of Pt XXII of the Electoral Act (Cth) (ldquothe Actrdquo) The petition was said to concern ldquothe election for the House of Representatives seat for the Division of Herbert held on Saturday 3 October 1998rdquo It alleged that the petitioner is enrolled in the Federal Division of Herbert in the State of Queensland and it appears from other allegations in the petition that he was eligible to vote in that Division in the election held on 3 October 1998

The Australian Electoral Commission seeks leave to enter an appearance in the proceeding and to be represented and be heard It seeks an order under O 16 r 4 of the High Court Rules that the name of the respondent to the petition be struck out It also seeks an order dismissing the petition or staying proceedings on the petition on the ground either that there is no reasonable or probable cause of action or suit or that the proceeding is an abuse of the process of the Court

As was the case in the other electoral petition which was instituted by Mr Ditchburn and with which I have dealt today Ditchburn v Australian Electoral Officer for Queensland [1999] HCA no reason was offered why the Commission should not have the leave it sought (under s 359 of the Act) and accordingly leave was given for it to appear be represented and heard on the petition Again however I need form no view on whether the respondent named in the petition was ldquoimproperly joinedrdquo within the meaning of O 16 r 4 of the Rules

The petitioner seeks to contend that the system of preferential voting for candidates in House of Representatives elections is contrary to the requirements of s 24 of the Constitution that the members of that House be ldquodirectly chosen by the peoplerdquo and s 30 of the Constitution that ldquoin the choosing of members each elector shall vole only oncerdquo In particular he alleges that ss 240(1)(b) 240(2) 274(7)(d) 274(7AA) 274(7AB) and 274(7AC) of the Act are invalid and he seeks a declaration to that effect and ldquoan order to annul the election of the Member for Herbert declared elected by the Divisional Returning Officer for Herbertrdquo pursuant to these provisionshellip

In my opinion these arguments [in the petition] are not tenable Some other arguments not raised by the petition were mentioned by the petitioner in oral argument They were by and large arguments of a political rather than legal nature Even if open to the petitioner sections 355 358 they do not assist in resolving the consyitulional issues that the petitioner sought to raise

In Langer v The Commonwealth (1996) 186 CLR 302 at least five members of the Court held at 316-317 per Brennan CJ 333 per Toohey and Gaudron JJ 348-349 per Gummow J that s 240 of the Act was a valid law within ss 31 and 51(xxxvi) of the Constitution and was not inconsistent with the requirement of s 24 that the House of Representatives shall be comprised of members ldquodirectly chosen by the people of the Commonwealthrdquo See also Judd v McKeon (1926) 38 CLR 380 Faderson v Bridger (1971) 126 CLR 217 And it may well be that the other two members of the Court were of the same opinion at 323 per Dawson J 340-341 per McHugh J The argument which the petitioner seeks to advance is at least to the extent that he relies on s 24 an argument which I am bound to hold would fail Even if Langer does not decide the further point on which the petitioner seeks to rely (that under the

preferential voting system a voter votes more than once contrary to s 30) that contention is one which must fail

Prior to Federation plural voting related to property qualification was allowed in Tasmania Western Australia and Queensland Attorney-General (Cth) Ex rel McKinlay v The Commonwealth (1975) 135 CLR 1 at 19 per Barwick CJ McGinty v Western Australia (1996) 186 CLR 140 at 281-282 per Gummow J It is clear from the Debates at the 1891 Convention in Sydney that the question of plural voting was well in the minds of the members of the Constitutional Conventions from which the terms of the Constitution emerged Official Record of the Debates of the Australasian Federal Convention (Sydney) 1891 vol 1 613-617 But the plural voting then under consideration permitted a voter to cast more than one expression of his or (in South Australia and Western Australia) her choice of candidate

The preferential voting system was provided for House of Representatives elections by s 124 of the Commonwealth Electoral Act 1918 and for the Senate by s 7 of the Commonwealth Electoral Act 1919 As McHugh J noted in Langer v The Commonwealth at 342 ldquoCompulsory preferential voting does not appear to have been introduced into Australia until 1911 when it was introduced in Western Australia But optional preferential voting was used in Queensland after 1892rdquo Even so the Constitution that emerged from the Constitutional Conventions ldquodid not entrench the secret ballot compulsory voting preferential or proportional votingrdquo McGinty v Western Australia (1996) 186 CLR 140 at 283 per Gummow J All that was said (so far as presently relevant) was that the members of the House of Representatives were to be ldquodirectly chosen by the peoplerdquo section 24 that until the Parliament otherwise provides ldquothe qualification of electors of members of the House of Representatives shall be in each State that which is prescribed by the law of the Slate as the qualification of electors of the more numerous House of Parliament of the Staterdquo section 30 and that ldquoin the choosing of members each elector shall vote only oncerdquo section 30

The petitioner placed some emphasis on what was said by McHugh J in Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106 at 228-233 about ldquorepresentative governmentrdquo But as Brennan CJ pointed out in McGinty v Western Australia at 169 the expressions ldquorepresentative governmentrdquo and ldquorepresentative democracyrdquo are not found in the Constitution and although they are useful terms to describe the effect of ss 7 and 24 ldquo[i]t is logically impermissible to treat lsquorepresentative democracyrsquo as though it were contained in the Constitution to attribute to the term a meaning or content derived from sources extrinsic to the Constitution and then to invalidate a law for inconsistency with the meaning or content so attributedrdquo

The requirements that members be ldquodirectly chosenrdquo and that ldquoeach elector shall vote only oncerdquo do not preclude the Parliament from providing (as it has) for a compulsory preferential voting system Langer v The Commonwealth Soegemeier v Macklin (1985) 58 ALR 768 Under that system each elector casts but one expression of his or her choice of member in one electoral division The choice is expressed in a complex way but it remains a single expression of the will of that voter And perhaps more relevantly the voter cannot cast a vote in more than one electoral district as voters could in those Colonies that permitted plural voting related to property qualifications The voter votes only once

No doubt it is right to say as the petitioner does that the distribution of preferences requires electoral officers to undertake the process prescribed in those parts of s 274 which deal with that subject But the performance of those tasks does not mean that the member is not ldquodirectly chosenrdquo as that expression is used in s 24

The petition cannot succeed It should be dismissed

9 Implications of the Ditchburn Decisions

91 Senate Group Ticket Voting

911 As discussed in part 71 above in this submission it is not unusual for independent Senate candidates to belatedly discover generally at the time of nomination that they are not entitled to appear on the ballot paper as a group ldquoabove the linerdquo and thereby take advantage of the ticket voting system for the Senate This may give rise to some protest at the ldquofairnessrdquo of sections 211 and 211A of the Electoral Act and can result in petitions to the Court of Disputed Returns after the election on the grounds that the law is both unconstitutional and ldquounfairrdquo to independent candidates

912 In Ditchburn v AEO Qld (unreported) Justice Hayne has confirmed the decisions in McClure v AEC (1999) 73 ALJR 1086 in Abbotto v AEC (1997) 71 ALJR 675 and in McKenzie v The Commonwealth (1984) 59 ALJR 190 that the Senate group ticket voting system is not unconstitutional and that it is not for the Court to decide whether the Senate group voting system is ldquofairrdquo or ldquounfairrdquo to independent candidates

913 In Ditchburn v AEO Qld Justice Hayne dealt with the further contention that the Senate group ticket voting is contrary to section 7 of the Constitution which requires that senators be ldquodirectly chosen by the peoplerdquo His Honour said that he did not accept the contention that sections 211 and 211A of the Electoral Act ldquoprescribe a method of electing Senators which resembles an electoral college and where Senators are indirectly chosen by the people of the Staterdquo

914 Full Preferential Voting

915 In Ditchburn v DRO Herbert (unreported) it was contended that full preferential voting is contrary to section 24 of the Constitution which requires that members be ldquodirectly chosen by the peoplerdquo and section 30 of the Constitution which requires that ldquoin the choosing of members each elector shall vote only oncerdquo

916 Justice Hayne did not accept that full preferential voting under section 240 of the Electoral Act is contrary to section 24 of the Constitution which requires that members be ldquodirectly chosen by the peoplerdquo In coming to this decision His Honour relied on the decision of the High Court in Langer v The Commonwealth (1996) 186 CLR 302 In Langer the High Court held that section 240 of the Electoral Act is a valid law within sections 31 and 51(xxxvi) of the Constitution and not inconsistent with the requirements of section 24 of the Constitution Justice Hayne noted that the decision in Langer was consistent with the decisions in Judd v McKeon (1926) 38 CLR 380 and Faderson v Bridger (1971) 126 CLR 217

917 Further Justice Hayne did not accept that full preferential voting is contrary to section 30 of the Constitution which requires that ldquoin the choosing of members each elector shall vote only oncerdquo In coming to this decision Justice Hayne relied on Attorney-General (Cth) Ex rel McKinlay v The Commonwealth (1975) 135 CLR 1 McGinty v Western Australia (1996) 186 CLR 140 Langer v The Commonwealth (1996) 186 CLR 302 and Soegemeier v Macklin (1985) 58 ALR 768

918 His Honour noted that prior to Federation plural voting on the basis of property qualifications was allowed in Tasmania Western Australia and Queensland It was clear from the Debates at the 1891 Convention in Sydney that the question of plural voting was well in the minds of the members of the Constitutional Conventions from which the terms of the Constitution emerged and hence the phrase ldquoin the choosing of members each elector shall vote only oncerdquo It is notable in this context that the Constitution that emerged from the Constitutional Conventions did not entrench either the secret ballot compulsory voting preferential voting or proportional voting

919 His Honour concluded that under the full preferential voting system each elector casts but one expression of his or her choice of member in one electoral Division The choice is expressed in a complex way but it remains a single expression of the will of that voter That is at federal elections with full preferential voting the voter votes only once All that the Constitution appears to proscribe is plural voting based on property qualifications as was permitted in colonial times

10 Summary of Outcomes in the 1998 Election Petitions

bull The Court of Disputed Returns has jurisdiction to hear election petitions disputing the constitutional qualifications of candidates

bull The United Kingdom is a ldquoforeign powerrdquo under the terms of section 44(i) of the Constitution

bull Ms Heather Hill a elected candidate for the Senate in Queensland was disqualified under section 44(i) of the Constitution as a British subject at the time of her nomination

bull The Senate group voting system is a valid law of the Parliament under the terms of the Constitution including sections 7 and 24 which require that senators and members be ldquodirectly chosen by the peoplerdquo

bull It is not for the Court to decide whether or not the Senate group voting system is fair or unfair to independent candidates

bull There is no provision for class actions in election petitions and in any case electors can only dispute the elections for which they were entitled to vote

bull The Court will apply the law as provided by the Parliament within the terms of the Constitution and there is nothing to suggest that Royal Assent was not properly given to the Electoral Act and its amending Acts

bull Section 240 of the Electoral Act which provides for full preferential voting is a valid law within the terms of the Constitution including sections 7 and 24 which require that members and senators be ldquodirectly chosen by the peoplerdquo and sections 8 and 30 which require that ldquoeach elector shall vote only oncerdquo

ATTACHMENTS

Attachment 1

Sue v Hill (S1791998 Gleeson CJ 19 March 1999 unreported)

See attached

Attachment 2

Sue v Hill (1999) 73 ALJR 1016

See attached

Attachment 3

Extract from AEC submission No124 of 15 November 1993 re costs

432 During the hearing on 1 October 1993 on the question of costs Justice Gaudron made a number of observations on the ease with which election petitions which may have no legal merit can be lodged with the Court of Disputed Returns under the current provisions of the Commonwealth Electoral Act 1918 For example on page 54 of the transcript Justice Gaudron said the following

The Act is by no means of model of clarity as to who can bring petitions it sets it up so that a person can come without the benefit of legal advice which might deflect it In fact it discourages positively prohibits legal representation without leave so that the Act is virtually inviting people to bring petitions which have not had the benefit of legal analysis

433 Her Honour then appeared to agree with the proposition of Mr Gageler for the Commonwealth that whilst the $100 security for costs required under section 356 of the Act in order to lodge a petition may have been a deterrent to vexatious or frivolous petitioners when it was first legislated in 1902 (when it was 50 pounds) it can hardly be regarded as a meaningful deterrent these days

434 In discussing with Mr Gageler the scheme of the Act which appears to encourage unimpeded access to the Court of Disputed Returns by any and all petitioners Justice Gaudron said at page 55 of the transcript

Virtually unimpeded access and as you tell me five out of six [of the petitions] have failed One well knows that some of the grounds that have been advanced in these petitions - and I put Mr Hudsons to one side - have been grounds that one would think would not have survived legal advice

435 In reference to section 370 of the Act which provides that no party to the petition shall except by consent of all parties or by leave of the Court be represented by counsel or solicitor [and] in no case shall more than one counsel or solicitor appear on behalf of any party Justice Gaudron went on to say

But very rarely do you have a provision such as this - you do in some Acts but not commonly - no legal representation except by leave So what you are doing is you are in fact encouraging people to come to the Court with arguments that do not necessarily have a basis in law

436 And finally on page 58 of the transcript Justice Gaudron said

I was hoping maybe that the legislature might see fit to do something with respect to the provisions as they stand It is by no means a model of clarity is it that part of the Act

437 These comments from the Bench are directed to petitions that ldquowould not have survived legal advicerdquo that is vexatious andor frivolous petitions and not to the Hudson petition in particular as is obvious from Justice Gaudronrsquos comment that the ease of access to the Court for petitioners of limited means such as Mr Hudson is ldquocommendablerdquo (see paragraph 427 above)

438 If any review of the provisions of the Act relating to costs and legal representation were to be undertaken it would need to be in the context of the following considerations

439 For the average petitioner it costs a total of $900 in set fees and charges to lodge a petition made up of the $100 deposit as security for costs under section 356 of the Commonwealth Electoral Act 1918 and the $300 filing fee and the $500 hearing fee under regulations 4(1) and 5(1) respectively of the High Court of Australia (Fees) Regulations If a petitioner can provide a health care card or a health benefit card or provide other reasons acceptable to the High Court Registry that indicate financial constraints then the High Court Regulations allow the $800 High Court fees to be waived There is no waiver under the Commonwealth Electoral Act 1918 for the $100 deposit as security for costs

4310 In addition to these set fees and the deposit under Order 68 rule 3 of the High Court Rules forthwith after filing a petition the petitioner must arrange for the petition to be published in the Commonwealth Gazette and the relevant State Gazette and in the case of an election for the House of Representatives the petitioner must publish a notice giving details of the petition in a newspaper circulating in the relevant electoral Division Further under Order 68 rule 5 of the Rules the petitioner must 28 days after the filing of the petition serve a copy of the petition upon every person whose election or return is disputed by the petition These requirements under the High Court Rules for publication and service can clearly add up to a considerable financial burden to the petitioner

4311 The Commission has no difficulty with the fees service and advertising requirements of the High Court Rules in so far as they apply to petitions disputing elections The Commission does however agree with Justice Gaudron that the provisions in the Commonwealth Electoral Act 1918 relating to costs and legal representation are dated and inconsistent

4312 The history of the introduction in 1902 to 1905 of the provisions of the Commonwealth Electoral Act 1918 relating to costs and legal representation in the Court of Disputed Returns will not be canvassed in detail in this Submission However it is worth noting that the two Houses of Parliament were divided at that time over whether to legislate for a non-judicial parliamentary Elections and Qualifications Committee or a Court of Disputed Returns with full judicial powers to settle election disputes The primary cause of concern was the high cost of legal fees for respondents required to defend their election before a court against wealthy and possibly vexatious petitioners

4313 In the outcome a Court of Disputed Returns was agreed upon as being more impartial in the settling of election disputes than a Parliamentary committee However as a trade-off a provision was inserted in the Act limiting legal representation in order to protect elected parliamentarians from the costs of vexatious challenges Section 370 of the Commonwealth Electoral Act 1918 which provides that except by consent of all parties or by leave of the Court no party shall be represented by counsel or solicitor was therefore inserted by section 57 of the Commonwealth Electoral Act 1905

4314 As a corollary the deposit to be paid by the petitioner as security for costs was held at a low level in the expectation that court costs for the respondents would be contained by the limitation on legal representation The further trade-off was that by holding the deposit to a low level access to the court was not limited for the impecunious petitioner with a genuine dispute Section 195 of the Commonwealth

Electoral Act 1902 provided that the deposit for security for costs should be 50 pounds That amount has not substantially changed in the intervening 90 years and now stands at $100 in section 356 of the Act

4315 Despite the concerns of the early legislators to protect elected parliamentarians from wealthy and vexatious petitioners modern day realities are that respondents will rarely appear without legal representation and more often than not will hire a Queens Counsel whose fee is guaranteed from party or other sympathetic resources It is also unlikely that the court would decline to consent to such representation if there were to be any objection from the petitioner This suggests that section 370 of the Act limiting legal representation no longer serves any practical purpose

4316 The provision does not appear in any way to either advantage or disadvantage the petitioner The impecunious petitioner by obtaining waivers on fees and by appearing without legal representation has ready access to the court The problem that Justice Gaudron has highlighted is that petitioners are encouraged by the apparent limitation on legal representation to bring disputes to court which might never have survived proper legal advice

4317 If section 370 were to be deleted from the legislation then the logical nexus between that provision and section 356 which sets a low $100 as the petitionerrsquos deposit for security for costs would fall away However there are other provisions relating to costs in the Act sections 360 (1)(ix) 360(1)(4) 372 and 373 for example which would need to be considered as part of any general review of the issue of costs and legal representation that the Committee might recommend

Attachment 4

Extract from AEC submission No 96 of 23 October 1996 on Federal Court

61 During the course of the proceedings it appeared as if evidentiary matters might have to be resolved in the petition by the examination of declaration envelopes and the calling of witnesses This could have involved up to 1594 individual investigations The High Court sitting as the Court of Disputed Returns has made it clear on at least one recent occasion (the Webster v Deahm petition in 1993) that it is not amendable to dealing with such a load and would if such evidentiary matters were to be pressed refer the petition to the relevant State Supreme Court This option is available to the Court under section 354 of the CEA

62 However it became clear during proceedings in this petition that there was a preference by the Bench for the questions of law to be resolved by the High Court with only questions of evidence being determined by the Supreme Court rather than the whole of the petition being heard and determined by the Supreme Court It was also the preferred position of the AEC that if a petition were to be split and any questions of evidence were to be remitted to the Supreme Court then the evidentiary determinations should be sent back to the High Court for final decision on the appropriate relief

63 It is the view of the AEC that the High Court and not a Supreme Court of a State should make final determinations on the proper outcome of challenges to a federal election for example whether or not a federal election should be voided The interpretation of section 354 of the CEA by the Chief Justice on 15 August 1996 means that it is not possible for the evidentiary and determinative matters in a petition to be ldquosplitrdquo between the High Court and a Supreme Court under the legislation as it currently standshellip

73 The Snowdon petition also gave rise to a procedural issue about the ldquosplittingrdquo of petitions and the remitting of questions of evidence from the High Court to inferior courts

The AEC recommends that section 354 of the CEA be amended to enable the High Court to remit aspects of a petition to a Supreme Court but so that the High Court retains final jurisdiction on relief

Attachment 5

McClure v AEC (1999) 73 ALJR 1086

See attached

82 The Ditchburn v DRO Herbert Petition

821 On 3 October Mr Donald Ditchburn an elector for the Division of Herbert in Queensland filed a petition in the Brisbane Registry of the High Court disputing the election of the Member for Herbert in Queensland In his petition Mr Ditchburn asserted his entitlement to vote at the election and asserted the following grounds for his petition (inter alia)

hellipElectors (like me) whose first preference for a minor party candidate was initially counted as their vote also had their ballot papers counted for their second third or fourth etc preference candidates and those candidates substituted by the DRO as the electorsrsquo alternative votes

As an electorrsquos vote can be ascribed to any candidate in hisher order of preference it follows that the elector must simultaneously vote for all candidates indicated on his ballot paper Under this construction if electors only vote for their first preference subsequent preferences should not be counted

Thus Section 274 of the Act has the effect of making the preferences each elector indicates pursuant to Section 240(1)(b) into multiple votes for the one vacant seat

This construction conflicts with the express and implied provisions of Section 30 of the Constitution of the Commonwealth of Australia which requires in part ldquobut in the choosing of members each elector shall vote only oncerdquo

But if Section 274 of the Act is construed as requiring the Divisional Returning Officer to ldquotransferrdquo the first preference votes of excluded candidates to opponents the DRO acts as an intermediary (or agent) in the votersrsquo choosing of members of the House of Representatives

The intervention of the DRO actually determines which of any electors preferences is finally accepted in the count of votes and thus determines which candidate the elector actually chooses

Consequently the intervention or agency of an officer of the Crown in the choosing of members means that such members are indirectly chosen by electors whose votes were transferred from excluded candidates This requirement of the Act conflicts with the first provision of Section 24 of the Constitution

ldquo24 The House of Representatives shall be composed of members directly chosen by the people of the Commonwealth rdquo

As Subsections 240(1)(b) 240(2) and 274(7) para (d) 274(7AA) 274(7AB) and 274(7AC) of the Commonwealth Electoral Act 1918 either conflict with Section 24 or with Section 30 of the Constitution of the Commonwealth (or with both) those provisions of the Act should be ultra vires Parliamentsrsquo legislative power under Section 31 and Section 51(xxxvi)

(It is not contended that MHRrsquos elected by gaining an absolute majority of first preference votes pursuant to Subsection 240(1)(a) of the Act are affected)

The facts and inferences referred to above also apply to comparable legislation with respect to the election of Senators filling the final Senate positions for each State Thus Subsection 239(1)(b) and Section 273 Subsections (13) (13AA) (13A) (13B) (13C) (14) (15) and (16) of the Commonwealth Electoral Act 1918 conflict with either Section 7 or Section 8 of the Constitution of the Commonwealth These provisions of the Act should similarly be ultra vires Sections 9 10 and 51(xxxvi) of the Constitutionhellip

822 The petitioner Mr Ditchburn asked the Court for the following orders

1 A declaration as to the validity of Subsections 240(1)(b) 240(2) and 274(7) para (d) 274(7AA) 274(7AB) and 274(7AC) of the Commonwealth Electoral Act 1918

2 An order to annul the election of the Member for Herbert declared elected by the Divisional Returning Officer for Herbert pursuant to the provisions of the Act referred to in 1 above

823 On 22 and 31 March 1999 a summons and affidavit was filed with the Court by Mr Maurice Swan of the Australian Government Solicitor on behalf of the AEC seeking orders that the AEC have leave to enter an appearance in the proceedings that the name of the respondent (DRO Herbert) be struck out and that the petition be dismissed or that proceedings be stayed on the grounds that there was no reasonable or probable cause of action or suit or that the proceeding is an abuse of the process of the Court

824 At the hearing on 22 July 1999 in Canberra before Justice Hayne of the High Court sitting as the Court of Disputed Returns Mr Gageler of counsel appeared for the AEC with Mr Geoffrey McCarthy and Mr Ditchburn represented himself on video-link

825 Mr Ditchburn did not oppose the application by the AEC to enter an appearance and leave was granted by the Court Mr Gageler for the AEC relied on the decision of the Court in Langer v The Commonwealth (1996) 186 CLR 302 where all members of the Court including Justice Dawson who otherwise dissented held section 240 of the Electoral Act valid

826 In reply the petitioner submitted that his petition was different in principle from the matters considered in Langer because his petition relied on the word ldquodirectlyrdquo appearing in section 24 of the Constitution This he submitted was not a matter raised or considered by the Court in Langer Justice Hayne listened to the petitioner at length but frequently commented that the issues being raised by the petitioner were matters of political science not constitutional validity His Honour then reserved his decision

827 Later on the same day 22 July 1999 Justice Hayne delivered his decision ordering that the petition be dismissed and that the petitioner Mr Ditchburn pay the costs of the AEC In his decision in Ditchburn v DRO Herbert (unreported) Justice Hayne said the following

On 7 December 1998 Donald Kenneth Ditchburn filed an Election Petition pursuant to Div 1 of Pt XXII of the Electoral Act (Cth) (ldquothe Actrdquo) The petition was said to concern ldquothe election for the House of Representatives seat for the Division of Herbert held on Saturday 3 October 1998rdquo It alleged that the petitioner is enrolled in the Federal Division of Herbert in the State of Queensland and it appears from other allegations in the petition that he was eligible to vote in that Division in the election held on 3 October 1998

The Australian Electoral Commission seeks leave to enter an appearance in the proceeding and to be represented and be heard It seeks an order under O 16 r 4 of the High Court Rules that the name of the respondent to the petition be struck out It also seeks an order dismissing the petition or staying proceedings on the petition on the ground either that there is no reasonable or probable cause of action or suit or that the proceeding is an abuse of the process of the Court

As was the case in the other electoral petition which was instituted by Mr Ditchburn and with which I have dealt today Ditchburn v Australian Electoral Officer for Queensland [1999] HCA no reason was offered why the Commission should not have the leave it sought (under s 359 of the Act) and accordingly leave was given for it to appear be represented and heard on the petition Again however I need form no view on whether the respondent named in the petition was ldquoimproperly joinedrdquo within the meaning of O 16 r 4 of the Rules

The petitioner seeks to contend that the system of preferential voting for candidates in House of Representatives elections is contrary to the requirements of s 24 of the Constitution that the members of that House be ldquodirectly chosen by the peoplerdquo and s 30 of the Constitution that ldquoin the choosing of members each elector shall vole only oncerdquo In particular he alleges that ss 240(1)(b) 240(2) 274(7)(d) 274(7AA) 274(7AB) and 274(7AC) of the Act are invalid and he seeks a declaration to that effect and ldquoan order to annul the election of the Member for Herbert declared elected by the Divisional Returning Officer for Herbertrdquo pursuant to these provisionshellip

In my opinion these arguments [in the petition] are not tenable Some other arguments not raised by the petition were mentioned by the petitioner in oral argument They were by and large arguments of a political rather than legal nature Even if open to the petitioner sections 355 358 they do not assist in resolving the consyitulional issues that the petitioner sought to raise

In Langer v The Commonwealth (1996) 186 CLR 302 at least five members of the Court held at 316-317 per Brennan CJ 333 per Toohey and Gaudron JJ 348-349 per Gummow J that s 240 of the Act was a valid law within ss 31 and 51(xxxvi) of the Constitution and was not inconsistent with the requirement of s 24 that the House of Representatives shall be comprised of members ldquodirectly chosen by the people of the Commonwealthrdquo See also Judd v McKeon (1926) 38 CLR 380 Faderson v Bridger (1971) 126 CLR 217 And it may well be that the other two members of the Court were of the same opinion at 323 per Dawson J 340-341 per McHugh J The argument which the petitioner seeks to advance is at least to the extent that he relies on s 24 an argument which I am bound to hold would fail Even if Langer does not decide the further point on which the petitioner seeks to rely (that under the

preferential voting system a voter votes more than once contrary to s 30) that contention is one which must fail

Prior to Federation plural voting related to property qualification was allowed in Tasmania Western Australia and Queensland Attorney-General (Cth) Ex rel McKinlay v The Commonwealth (1975) 135 CLR 1 at 19 per Barwick CJ McGinty v Western Australia (1996) 186 CLR 140 at 281-282 per Gummow J It is clear from the Debates at the 1891 Convention in Sydney that the question of plural voting was well in the minds of the members of the Constitutional Conventions from which the terms of the Constitution emerged Official Record of the Debates of the Australasian Federal Convention (Sydney) 1891 vol 1 613-617 But the plural voting then under consideration permitted a voter to cast more than one expression of his or (in South Australia and Western Australia) her choice of candidate

The preferential voting system was provided for House of Representatives elections by s 124 of the Commonwealth Electoral Act 1918 and for the Senate by s 7 of the Commonwealth Electoral Act 1919 As McHugh J noted in Langer v The Commonwealth at 342 ldquoCompulsory preferential voting does not appear to have been introduced into Australia until 1911 when it was introduced in Western Australia But optional preferential voting was used in Queensland after 1892rdquo Even so the Constitution that emerged from the Constitutional Conventions ldquodid not entrench the secret ballot compulsory voting preferential or proportional votingrdquo McGinty v Western Australia (1996) 186 CLR 140 at 283 per Gummow J All that was said (so far as presently relevant) was that the members of the House of Representatives were to be ldquodirectly chosen by the peoplerdquo section 24 that until the Parliament otherwise provides ldquothe qualification of electors of members of the House of Representatives shall be in each State that which is prescribed by the law of the Slate as the qualification of electors of the more numerous House of Parliament of the Staterdquo section 30 and that ldquoin the choosing of members each elector shall vote only oncerdquo section 30

The petitioner placed some emphasis on what was said by McHugh J in Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106 at 228-233 about ldquorepresentative governmentrdquo But as Brennan CJ pointed out in McGinty v Western Australia at 169 the expressions ldquorepresentative governmentrdquo and ldquorepresentative democracyrdquo are not found in the Constitution and although they are useful terms to describe the effect of ss 7 and 24 ldquo[i]t is logically impermissible to treat lsquorepresentative democracyrsquo as though it were contained in the Constitution to attribute to the term a meaning or content derived from sources extrinsic to the Constitution and then to invalidate a law for inconsistency with the meaning or content so attributedrdquo

The requirements that members be ldquodirectly chosenrdquo and that ldquoeach elector shall vote only oncerdquo do not preclude the Parliament from providing (as it has) for a compulsory preferential voting system Langer v The Commonwealth Soegemeier v Macklin (1985) 58 ALR 768 Under that system each elector casts but one expression of his or her choice of member in one electoral division The choice is expressed in a complex way but it remains a single expression of the will of that voter And perhaps more relevantly the voter cannot cast a vote in more than one electoral district as voters could in those Colonies that permitted plural voting related to property qualifications The voter votes only once

No doubt it is right to say as the petitioner does that the distribution of preferences requires electoral officers to undertake the process prescribed in those parts of s 274 which deal with that subject But the performance of those tasks does not mean that the member is not ldquodirectly chosenrdquo as that expression is used in s 24

The petition cannot succeed It should be dismissed

9 Implications of the Ditchburn Decisions

91 Senate Group Ticket Voting

911 As discussed in part 71 above in this submission it is not unusual for independent Senate candidates to belatedly discover generally at the time of nomination that they are not entitled to appear on the ballot paper as a group ldquoabove the linerdquo and thereby take advantage of the ticket voting system for the Senate This may give rise to some protest at the ldquofairnessrdquo of sections 211 and 211A of the Electoral Act and can result in petitions to the Court of Disputed Returns after the election on the grounds that the law is both unconstitutional and ldquounfairrdquo to independent candidates

912 In Ditchburn v AEO Qld (unreported) Justice Hayne has confirmed the decisions in McClure v AEC (1999) 73 ALJR 1086 in Abbotto v AEC (1997) 71 ALJR 675 and in McKenzie v The Commonwealth (1984) 59 ALJR 190 that the Senate group ticket voting system is not unconstitutional and that it is not for the Court to decide whether the Senate group voting system is ldquofairrdquo or ldquounfairrdquo to independent candidates

913 In Ditchburn v AEO Qld Justice Hayne dealt with the further contention that the Senate group ticket voting is contrary to section 7 of the Constitution which requires that senators be ldquodirectly chosen by the peoplerdquo His Honour said that he did not accept the contention that sections 211 and 211A of the Electoral Act ldquoprescribe a method of electing Senators which resembles an electoral college and where Senators are indirectly chosen by the people of the Staterdquo

914 Full Preferential Voting

915 In Ditchburn v DRO Herbert (unreported) it was contended that full preferential voting is contrary to section 24 of the Constitution which requires that members be ldquodirectly chosen by the peoplerdquo and section 30 of the Constitution which requires that ldquoin the choosing of members each elector shall vote only oncerdquo

916 Justice Hayne did not accept that full preferential voting under section 240 of the Electoral Act is contrary to section 24 of the Constitution which requires that members be ldquodirectly chosen by the peoplerdquo In coming to this decision His Honour relied on the decision of the High Court in Langer v The Commonwealth (1996) 186 CLR 302 In Langer the High Court held that section 240 of the Electoral Act is a valid law within sections 31 and 51(xxxvi) of the Constitution and not inconsistent with the requirements of section 24 of the Constitution Justice Hayne noted that the decision in Langer was consistent with the decisions in Judd v McKeon (1926) 38 CLR 380 and Faderson v Bridger (1971) 126 CLR 217

917 Further Justice Hayne did not accept that full preferential voting is contrary to section 30 of the Constitution which requires that ldquoin the choosing of members each elector shall vote only oncerdquo In coming to this decision Justice Hayne relied on Attorney-General (Cth) Ex rel McKinlay v The Commonwealth (1975) 135 CLR 1 McGinty v Western Australia (1996) 186 CLR 140 Langer v The Commonwealth (1996) 186 CLR 302 and Soegemeier v Macklin (1985) 58 ALR 768

918 His Honour noted that prior to Federation plural voting on the basis of property qualifications was allowed in Tasmania Western Australia and Queensland It was clear from the Debates at the 1891 Convention in Sydney that the question of plural voting was well in the minds of the members of the Constitutional Conventions from which the terms of the Constitution emerged and hence the phrase ldquoin the choosing of members each elector shall vote only oncerdquo It is notable in this context that the Constitution that emerged from the Constitutional Conventions did not entrench either the secret ballot compulsory voting preferential voting or proportional voting

919 His Honour concluded that under the full preferential voting system each elector casts but one expression of his or her choice of member in one electoral Division The choice is expressed in a complex way but it remains a single expression of the will of that voter That is at federal elections with full preferential voting the voter votes only once All that the Constitution appears to proscribe is plural voting based on property qualifications as was permitted in colonial times

10 Summary of Outcomes in the 1998 Election Petitions

bull The Court of Disputed Returns has jurisdiction to hear election petitions disputing the constitutional qualifications of candidates

bull The United Kingdom is a ldquoforeign powerrdquo under the terms of section 44(i) of the Constitution

bull Ms Heather Hill a elected candidate for the Senate in Queensland was disqualified under section 44(i) of the Constitution as a British subject at the time of her nomination

bull The Senate group voting system is a valid law of the Parliament under the terms of the Constitution including sections 7 and 24 which require that senators and members be ldquodirectly chosen by the peoplerdquo

bull It is not for the Court to decide whether or not the Senate group voting system is fair or unfair to independent candidates

bull There is no provision for class actions in election petitions and in any case electors can only dispute the elections for which they were entitled to vote

bull The Court will apply the law as provided by the Parliament within the terms of the Constitution and there is nothing to suggest that Royal Assent was not properly given to the Electoral Act and its amending Acts

bull Section 240 of the Electoral Act which provides for full preferential voting is a valid law within the terms of the Constitution including sections 7 and 24 which require that members and senators be ldquodirectly chosen by the peoplerdquo and sections 8 and 30 which require that ldquoeach elector shall vote only oncerdquo

ATTACHMENTS

Attachment 1

Sue v Hill (S1791998 Gleeson CJ 19 March 1999 unreported)

See attached

Attachment 2

Sue v Hill (1999) 73 ALJR 1016

See attached

Attachment 3

Extract from AEC submission No124 of 15 November 1993 re costs

432 During the hearing on 1 October 1993 on the question of costs Justice Gaudron made a number of observations on the ease with which election petitions which may have no legal merit can be lodged with the Court of Disputed Returns under the current provisions of the Commonwealth Electoral Act 1918 For example on page 54 of the transcript Justice Gaudron said the following

The Act is by no means of model of clarity as to who can bring petitions it sets it up so that a person can come without the benefit of legal advice which might deflect it In fact it discourages positively prohibits legal representation without leave so that the Act is virtually inviting people to bring petitions which have not had the benefit of legal analysis

433 Her Honour then appeared to agree with the proposition of Mr Gageler for the Commonwealth that whilst the $100 security for costs required under section 356 of the Act in order to lodge a petition may have been a deterrent to vexatious or frivolous petitioners when it was first legislated in 1902 (when it was 50 pounds) it can hardly be regarded as a meaningful deterrent these days

434 In discussing with Mr Gageler the scheme of the Act which appears to encourage unimpeded access to the Court of Disputed Returns by any and all petitioners Justice Gaudron said at page 55 of the transcript

Virtually unimpeded access and as you tell me five out of six [of the petitions] have failed One well knows that some of the grounds that have been advanced in these petitions - and I put Mr Hudsons to one side - have been grounds that one would think would not have survived legal advice

435 In reference to section 370 of the Act which provides that no party to the petition shall except by consent of all parties or by leave of the Court be represented by counsel or solicitor [and] in no case shall more than one counsel or solicitor appear on behalf of any party Justice Gaudron went on to say

But very rarely do you have a provision such as this - you do in some Acts but not commonly - no legal representation except by leave So what you are doing is you are in fact encouraging people to come to the Court with arguments that do not necessarily have a basis in law

436 And finally on page 58 of the transcript Justice Gaudron said

I was hoping maybe that the legislature might see fit to do something with respect to the provisions as they stand It is by no means a model of clarity is it that part of the Act

437 These comments from the Bench are directed to petitions that ldquowould not have survived legal advicerdquo that is vexatious andor frivolous petitions and not to the Hudson petition in particular as is obvious from Justice Gaudronrsquos comment that the ease of access to the Court for petitioners of limited means such as Mr Hudson is ldquocommendablerdquo (see paragraph 427 above)

438 If any review of the provisions of the Act relating to costs and legal representation were to be undertaken it would need to be in the context of the following considerations

439 For the average petitioner it costs a total of $900 in set fees and charges to lodge a petition made up of the $100 deposit as security for costs under section 356 of the Commonwealth Electoral Act 1918 and the $300 filing fee and the $500 hearing fee under regulations 4(1) and 5(1) respectively of the High Court of Australia (Fees) Regulations If a petitioner can provide a health care card or a health benefit card or provide other reasons acceptable to the High Court Registry that indicate financial constraints then the High Court Regulations allow the $800 High Court fees to be waived There is no waiver under the Commonwealth Electoral Act 1918 for the $100 deposit as security for costs

4310 In addition to these set fees and the deposit under Order 68 rule 3 of the High Court Rules forthwith after filing a petition the petitioner must arrange for the petition to be published in the Commonwealth Gazette and the relevant State Gazette and in the case of an election for the House of Representatives the petitioner must publish a notice giving details of the petition in a newspaper circulating in the relevant electoral Division Further under Order 68 rule 5 of the Rules the petitioner must 28 days after the filing of the petition serve a copy of the petition upon every person whose election or return is disputed by the petition These requirements under the High Court Rules for publication and service can clearly add up to a considerable financial burden to the petitioner

4311 The Commission has no difficulty with the fees service and advertising requirements of the High Court Rules in so far as they apply to petitions disputing elections The Commission does however agree with Justice Gaudron that the provisions in the Commonwealth Electoral Act 1918 relating to costs and legal representation are dated and inconsistent

4312 The history of the introduction in 1902 to 1905 of the provisions of the Commonwealth Electoral Act 1918 relating to costs and legal representation in the Court of Disputed Returns will not be canvassed in detail in this Submission However it is worth noting that the two Houses of Parliament were divided at that time over whether to legislate for a non-judicial parliamentary Elections and Qualifications Committee or a Court of Disputed Returns with full judicial powers to settle election disputes The primary cause of concern was the high cost of legal fees for respondents required to defend their election before a court against wealthy and possibly vexatious petitioners

4313 In the outcome a Court of Disputed Returns was agreed upon as being more impartial in the settling of election disputes than a Parliamentary committee However as a trade-off a provision was inserted in the Act limiting legal representation in order to protect elected parliamentarians from the costs of vexatious challenges Section 370 of the Commonwealth Electoral Act 1918 which provides that except by consent of all parties or by leave of the Court no party shall be represented by counsel or solicitor was therefore inserted by section 57 of the Commonwealth Electoral Act 1905

4314 As a corollary the deposit to be paid by the petitioner as security for costs was held at a low level in the expectation that court costs for the respondents would be contained by the limitation on legal representation The further trade-off was that by holding the deposit to a low level access to the court was not limited for the impecunious petitioner with a genuine dispute Section 195 of the Commonwealth

Electoral Act 1902 provided that the deposit for security for costs should be 50 pounds That amount has not substantially changed in the intervening 90 years and now stands at $100 in section 356 of the Act

4315 Despite the concerns of the early legislators to protect elected parliamentarians from wealthy and vexatious petitioners modern day realities are that respondents will rarely appear without legal representation and more often than not will hire a Queens Counsel whose fee is guaranteed from party or other sympathetic resources It is also unlikely that the court would decline to consent to such representation if there were to be any objection from the petitioner This suggests that section 370 of the Act limiting legal representation no longer serves any practical purpose

4316 The provision does not appear in any way to either advantage or disadvantage the petitioner The impecunious petitioner by obtaining waivers on fees and by appearing without legal representation has ready access to the court The problem that Justice Gaudron has highlighted is that petitioners are encouraged by the apparent limitation on legal representation to bring disputes to court which might never have survived proper legal advice

4317 If section 370 were to be deleted from the legislation then the logical nexus between that provision and section 356 which sets a low $100 as the petitionerrsquos deposit for security for costs would fall away However there are other provisions relating to costs in the Act sections 360 (1)(ix) 360(1)(4) 372 and 373 for example which would need to be considered as part of any general review of the issue of costs and legal representation that the Committee might recommend

Attachment 4

Extract from AEC submission No 96 of 23 October 1996 on Federal Court

61 During the course of the proceedings it appeared as if evidentiary matters might have to be resolved in the petition by the examination of declaration envelopes and the calling of witnesses This could have involved up to 1594 individual investigations The High Court sitting as the Court of Disputed Returns has made it clear on at least one recent occasion (the Webster v Deahm petition in 1993) that it is not amendable to dealing with such a load and would if such evidentiary matters were to be pressed refer the petition to the relevant State Supreme Court This option is available to the Court under section 354 of the CEA

62 However it became clear during proceedings in this petition that there was a preference by the Bench for the questions of law to be resolved by the High Court with only questions of evidence being determined by the Supreme Court rather than the whole of the petition being heard and determined by the Supreme Court It was also the preferred position of the AEC that if a petition were to be split and any questions of evidence were to be remitted to the Supreme Court then the evidentiary determinations should be sent back to the High Court for final decision on the appropriate relief

63 It is the view of the AEC that the High Court and not a Supreme Court of a State should make final determinations on the proper outcome of challenges to a federal election for example whether or not a federal election should be voided The interpretation of section 354 of the CEA by the Chief Justice on 15 August 1996 means that it is not possible for the evidentiary and determinative matters in a petition to be ldquosplitrdquo between the High Court and a Supreme Court under the legislation as it currently standshellip

73 The Snowdon petition also gave rise to a procedural issue about the ldquosplittingrdquo of petitions and the remitting of questions of evidence from the High Court to inferior courts

The AEC recommends that section 354 of the CEA be amended to enable the High Court to remit aspects of a petition to a Supreme Court but so that the High Court retains final jurisdiction on relief

Attachment 5

McClure v AEC (1999) 73 ALJR 1086

See attached

The facts and inferences referred to above also apply to comparable legislation with respect to the election of Senators filling the final Senate positions for each State Thus Subsection 239(1)(b) and Section 273 Subsections (13) (13AA) (13A) (13B) (13C) (14) (15) and (16) of the Commonwealth Electoral Act 1918 conflict with either Section 7 or Section 8 of the Constitution of the Commonwealth These provisions of the Act should similarly be ultra vires Sections 9 10 and 51(xxxvi) of the Constitutionhellip

822 The petitioner Mr Ditchburn asked the Court for the following orders

1 A declaration as to the validity of Subsections 240(1)(b) 240(2) and 274(7) para (d) 274(7AA) 274(7AB) and 274(7AC) of the Commonwealth Electoral Act 1918

2 An order to annul the election of the Member for Herbert declared elected by the Divisional Returning Officer for Herbert pursuant to the provisions of the Act referred to in 1 above

823 On 22 and 31 March 1999 a summons and affidavit was filed with the Court by Mr Maurice Swan of the Australian Government Solicitor on behalf of the AEC seeking orders that the AEC have leave to enter an appearance in the proceedings that the name of the respondent (DRO Herbert) be struck out and that the petition be dismissed or that proceedings be stayed on the grounds that there was no reasonable or probable cause of action or suit or that the proceeding is an abuse of the process of the Court

824 At the hearing on 22 July 1999 in Canberra before Justice Hayne of the High Court sitting as the Court of Disputed Returns Mr Gageler of counsel appeared for the AEC with Mr Geoffrey McCarthy and Mr Ditchburn represented himself on video-link

825 Mr Ditchburn did not oppose the application by the AEC to enter an appearance and leave was granted by the Court Mr Gageler for the AEC relied on the decision of the Court in Langer v The Commonwealth (1996) 186 CLR 302 where all members of the Court including Justice Dawson who otherwise dissented held section 240 of the Electoral Act valid

826 In reply the petitioner submitted that his petition was different in principle from the matters considered in Langer because his petition relied on the word ldquodirectlyrdquo appearing in section 24 of the Constitution This he submitted was not a matter raised or considered by the Court in Langer Justice Hayne listened to the petitioner at length but frequently commented that the issues being raised by the petitioner were matters of political science not constitutional validity His Honour then reserved his decision

827 Later on the same day 22 July 1999 Justice Hayne delivered his decision ordering that the petition be dismissed and that the petitioner Mr Ditchburn pay the costs of the AEC In his decision in Ditchburn v DRO Herbert (unreported) Justice Hayne said the following

On 7 December 1998 Donald Kenneth Ditchburn filed an Election Petition pursuant to Div 1 of Pt XXII of the Electoral Act (Cth) (ldquothe Actrdquo) The petition was said to concern ldquothe election for the House of Representatives seat for the Division of Herbert held on Saturday 3 October 1998rdquo It alleged that the petitioner is enrolled in the Federal Division of Herbert in the State of Queensland and it appears from other allegations in the petition that he was eligible to vote in that Division in the election held on 3 October 1998

The Australian Electoral Commission seeks leave to enter an appearance in the proceeding and to be represented and be heard It seeks an order under O 16 r 4 of the High Court Rules that the name of the respondent to the petition be struck out It also seeks an order dismissing the petition or staying proceedings on the petition on the ground either that there is no reasonable or probable cause of action or suit or that the proceeding is an abuse of the process of the Court

As was the case in the other electoral petition which was instituted by Mr Ditchburn and with which I have dealt today Ditchburn v Australian Electoral Officer for Queensland [1999] HCA no reason was offered why the Commission should not have the leave it sought (under s 359 of the Act) and accordingly leave was given for it to appear be represented and heard on the petition Again however I need form no view on whether the respondent named in the petition was ldquoimproperly joinedrdquo within the meaning of O 16 r 4 of the Rules

The petitioner seeks to contend that the system of preferential voting for candidates in House of Representatives elections is contrary to the requirements of s 24 of the Constitution that the members of that House be ldquodirectly chosen by the peoplerdquo and s 30 of the Constitution that ldquoin the choosing of members each elector shall vole only oncerdquo In particular he alleges that ss 240(1)(b) 240(2) 274(7)(d) 274(7AA) 274(7AB) and 274(7AC) of the Act are invalid and he seeks a declaration to that effect and ldquoan order to annul the election of the Member for Herbert declared elected by the Divisional Returning Officer for Herbertrdquo pursuant to these provisionshellip

In my opinion these arguments [in the petition] are not tenable Some other arguments not raised by the petition were mentioned by the petitioner in oral argument They were by and large arguments of a political rather than legal nature Even if open to the petitioner sections 355 358 they do not assist in resolving the consyitulional issues that the petitioner sought to raise

In Langer v The Commonwealth (1996) 186 CLR 302 at least five members of the Court held at 316-317 per Brennan CJ 333 per Toohey and Gaudron JJ 348-349 per Gummow J that s 240 of the Act was a valid law within ss 31 and 51(xxxvi) of the Constitution and was not inconsistent with the requirement of s 24 that the House of Representatives shall be comprised of members ldquodirectly chosen by the people of the Commonwealthrdquo See also Judd v McKeon (1926) 38 CLR 380 Faderson v Bridger (1971) 126 CLR 217 And it may well be that the other two members of the Court were of the same opinion at 323 per Dawson J 340-341 per McHugh J The argument which the petitioner seeks to advance is at least to the extent that he relies on s 24 an argument which I am bound to hold would fail Even if Langer does not decide the further point on which the petitioner seeks to rely (that under the

preferential voting system a voter votes more than once contrary to s 30) that contention is one which must fail

Prior to Federation plural voting related to property qualification was allowed in Tasmania Western Australia and Queensland Attorney-General (Cth) Ex rel McKinlay v The Commonwealth (1975) 135 CLR 1 at 19 per Barwick CJ McGinty v Western Australia (1996) 186 CLR 140 at 281-282 per Gummow J It is clear from the Debates at the 1891 Convention in Sydney that the question of plural voting was well in the minds of the members of the Constitutional Conventions from which the terms of the Constitution emerged Official Record of the Debates of the Australasian Federal Convention (Sydney) 1891 vol 1 613-617 But the plural voting then under consideration permitted a voter to cast more than one expression of his or (in South Australia and Western Australia) her choice of candidate

The preferential voting system was provided for House of Representatives elections by s 124 of the Commonwealth Electoral Act 1918 and for the Senate by s 7 of the Commonwealth Electoral Act 1919 As McHugh J noted in Langer v The Commonwealth at 342 ldquoCompulsory preferential voting does not appear to have been introduced into Australia until 1911 when it was introduced in Western Australia But optional preferential voting was used in Queensland after 1892rdquo Even so the Constitution that emerged from the Constitutional Conventions ldquodid not entrench the secret ballot compulsory voting preferential or proportional votingrdquo McGinty v Western Australia (1996) 186 CLR 140 at 283 per Gummow J All that was said (so far as presently relevant) was that the members of the House of Representatives were to be ldquodirectly chosen by the peoplerdquo section 24 that until the Parliament otherwise provides ldquothe qualification of electors of members of the House of Representatives shall be in each State that which is prescribed by the law of the Slate as the qualification of electors of the more numerous House of Parliament of the Staterdquo section 30 and that ldquoin the choosing of members each elector shall vote only oncerdquo section 30

The petitioner placed some emphasis on what was said by McHugh J in Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106 at 228-233 about ldquorepresentative governmentrdquo But as Brennan CJ pointed out in McGinty v Western Australia at 169 the expressions ldquorepresentative governmentrdquo and ldquorepresentative democracyrdquo are not found in the Constitution and although they are useful terms to describe the effect of ss 7 and 24 ldquo[i]t is logically impermissible to treat lsquorepresentative democracyrsquo as though it were contained in the Constitution to attribute to the term a meaning or content derived from sources extrinsic to the Constitution and then to invalidate a law for inconsistency with the meaning or content so attributedrdquo

The requirements that members be ldquodirectly chosenrdquo and that ldquoeach elector shall vote only oncerdquo do not preclude the Parliament from providing (as it has) for a compulsory preferential voting system Langer v The Commonwealth Soegemeier v Macklin (1985) 58 ALR 768 Under that system each elector casts but one expression of his or her choice of member in one electoral division The choice is expressed in a complex way but it remains a single expression of the will of that voter And perhaps more relevantly the voter cannot cast a vote in more than one electoral district as voters could in those Colonies that permitted plural voting related to property qualifications The voter votes only once

No doubt it is right to say as the petitioner does that the distribution of preferences requires electoral officers to undertake the process prescribed in those parts of s 274 which deal with that subject But the performance of those tasks does not mean that the member is not ldquodirectly chosenrdquo as that expression is used in s 24

The petition cannot succeed It should be dismissed

9 Implications of the Ditchburn Decisions

91 Senate Group Ticket Voting

911 As discussed in part 71 above in this submission it is not unusual for independent Senate candidates to belatedly discover generally at the time of nomination that they are not entitled to appear on the ballot paper as a group ldquoabove the linerdquo and thereby take advantage of the ticket voting system for the Senate This may give rise to some protest at the ldquofairnessrdquo of sections 211 and 211A of the Electoral Act and can result in petitions to the Court of Disputed Returns after the election on the grounds that the law is both unconstitutional and ldquounfairrdquo to independent candidates

912 In Ditchburn v AEO Qld (unreported) Justice Hayne has confirmed the decisions in McClure v AEC (1999) 73 ALJR 1086 in Abbotto v AEC (1997) 71 ALJR 675 and in McKenzie v The Commonwealth (1984) 59 ALJR 190 that the Senate group ticket voting system is not unconstitutional and that it is not for the Court to decide whether the Senate group voting system is ldquofairrdquo or ldquounfairrdquo to independent candidates

913 In Ditchburn v AEO Qld Justice Hayne dealt with the further contention that the Senate group ticket voting is contrary to section 7 of the Constitution which requires that senators be ldquodirectly chosen by the peoplerdquo His Honour said that he did not accept the contention that sections 211 and 211A of the Electoral Act ldquoprescribe a method of electing Senators which resembles an electoral college and where Senators are indirectly chosen by the people of the Staterdquo

914 Full Preferential Voting

915 In Ditchburn v DRO Herbert (unreported) it was contended that full preferential voting is contrary to section 24 of the Constitution which requires that members be ldquodirectly chosen by the peoplerdquo and section 30 of the Constitution which requires that ldquoin the choosing of members each elector shall vote only oncerdquo

916 Justice Hayne did not accept that full preferential voting under section 240 of the Electoral Act is contrary to section 24 of the Constitution which requires that members be ldquodirectly chosen by the peoplerdquo In coming to this decision His Honour relied on the decision of the High Court in Langer v The Commonwealth (1996) 186 CLR 302 In Langer the High Court held that section 240 of the Electoral Act is a valid law within sections 31 and 51(xxxvi) of the Constitution and not inconsistent with the requirements of section 24 of the Constitution Justice Hayne noted that the decision in Langer was consistent with the decisions in Judd v McKeon (1926) 38 CLR 380 and Faderson v Bridger (1971) 126 CLR 217

917 Further Justice Hayne did not accept that full preferential voting is contrary to section 30 of the Constitution which requires that ldquoin the choosing of members each elector shall vote only oncerdquo In coming to this decision Justice Hayne relied on Attorney-General (Cth) Ex rel McKinlay v The Commonwealth (1975) 135 CLR 1 McGinty v Western Australia (1996) 186 CLR 140 Langer v The Commonwealth (1996) 186 CLR 302 and Soegemeier v Macklin (1985) 58 ALR 768

918 His Honour noted that prior to Federation plural voting on the basis of property qualifications was allowed in Tasmania Western Australia and Queensland It was clear from the Debates at the 1891 Convention in Sydney that the question of plural voting was well in the minds of the members of the Constitutional Conventions from which the terms of the Constitution emerged and hence the phrase ldquoin the choosing of members each elector shall vote only oncerdquo It is notable in this context that the Constitution that emerged from the Constitutional Conventions did not entrench either the secret ballot compulsory voting preferential voting or proportional voting

919 His Honour concluded that under the full preferential voting system each elector casts but one expression of his or her choice of member in one electoral Division The choice is expressed in a complex way but it remains a single expression of the will of that voter That is at federal elections with full preferential voting the voter votes only once All that the Constitution appears to proscribe is plural voting based on property qualifications as was permitted in colonial times

10 Summary of Outcomes in the 1998 Election Petitions

bull The Court of Disputed Returns has jurisdiction to hear election petitions disputing the constitutional qualifications of candidates

bull The United Kingdom is a ldquoforeign powerrdquo under the terms of section 44(i) of the Constitution

bull Ms Heather Hill a elected candidate for the Senate in Queensland was disqualified under section 44(i) of the Constitution as a British subject at the time of her nomination

bull The Senate group voting system is a valid law of the Parliament under the terms of the Constitution including sections 7 and 24 which require that senators and members be ldquodirectly chosen by the peoplerdquo

bull It is not for the Court to decide whether or not the Senate group voting system is fair or unfair to independent candidates

bull There is no provision for class actions in election petitions and in any case electors can only dispute the elections for which they were entitled to vote

bull The Court will apply the law as provided by the Parliament within the terms of the Constitution and there is nothing to suggest that Royal Assent was not properly given to the Electoral Act and its amending Acts

bull Section 240 of the Electoral Act which provides for full preferential voting is a valid law within the terms of the Constitution including sections 7 and 24 which require that members and senators be ldquodirectly chosen by the peoplerdquo and sections 8 and 30 which require that ldquoeach elector shall vote only oncerdquo

ATTACHMENTS

Attachment 1

Sue v Hill (S1791998 Gleeson CJ 19 March 1999 unreported)

See attached

Attachment 2

Sue v Hill (1999) 73 ALJR 1016

See attached

Attachment 3

Extract from AEC submission No124 of 15 November 1993 re costs

432 During the hearing on 1 October 1993 on the question of costs Justice Gaudron made a number of observations on the ease with which election petitions which may have no legal merit can be lodged with the Court of Disputed Returns under the current provisions of the Commonwealth Electoral Act 1918 For example on page 54 of the transcript Justice Gaudron said the following

The Act is by no means of model of clarity as to who can bring petitions it sets it up so that a person can come without the benefit of legal advice which might deflect it In fact it discourages positively prohibits legal representation without leave so that the Act is virtually inviting people to bring petitions which have not had the benefit of legal analysis

433 Her Honour then appeared to agree with the proposition of Mr Gageler for the Commonwealth that whilst the $100 security for costs required under section 356 of the Act in order to lodge a petition may have been a deterrent to vexatious or frivolous petitioners when it was first legislated in 1902 (when it was 50 pounds) it can hardly be regarded as a meaningful deterrent these days

434 In discussing with Mr Gageler the scheme of the Act which appears to encourage unimpeded access to the Court of Disputed Returns by any and all petitioners Justice Gaudron said at page 55 of the transcript

Virtually unimpeded access and as you tell me five out of six [of the petitions] have failed One well knows that some of the grounds that have been advanced in these petitions - and I put Mr Hudsons to one side - have been grounds that one would think would not have survived legal advice

435 In reference to section 370 of the Act which provides that no party to the petition shall except by consent of all parties or by leave of the Court be represented by counsel or solicitor [and] in no case shall more than one counsel or solicitor appear on behalf of any party Justice Gaudron went on to say

But very rarely do you have a provision such as this - you do in some Acts but not commonly - no legal representation except by leave So what you are doing is you are in fact encouraging people to come to the Court with arguments that do not necessarily have a basis in law

436 And finally on page 58 of the transcript Justice Gaudron said

I was hoping maybe that the legislature might see fit to do something with respect to the provisions as they stand It is by no means a model of clarity is it that part of the Act

437 These comments from the Bench are directed to petitions that ldquowould not have survived legal advicerdquo that is vexatious andor frivolous petitions and not to the Hudson petition in particular as is obvious from Justice Gaudronrsquos comment that the ease of access to the Court for petitioners of limited means such as Mr Hudson is ldquocommendablerdquo (see paragraph 427 above)

438 If any review of the provisions of the Act relating to costs and legal representation were to be undertaken it would need to be in the context of the following considerations

439 For the average petitioner it costs a total of $900 in set fees and charges to lodge a petition made up of the $100 deposit as security for costs under section 356 of the Commonwealth Electoral Act 1918 and the $300 filing fee and the $500 hearing fee under regulations 4(1) and 5(1) respectively of the High Court of Australia (Fees) Regulations If a petitioner can provide a health care card or a health benefit card or provide other reasons acceptable to the High Court Registry that indicate financial constraints then the High Court Regulations allow the $800 High Court fees to be waived There is no waiver under the Commonwealth Electoral Act 1918 for the $100 deposit as security for costs

4310 In addition to these set fees and the deposit under Order 68 rule 3 of the High Court Rules forthwith after filing a petition the petitioner must arrange for the petition to be published in the Commonwealth Gazette and the relevant State Gazette and in the case of an election for the House of Representatives the petitioner must publish a notice giving details of the petition in a newspaper circulating in the relevant electoral Division Further under Order 68 rule 5 of the Rules the petitioner must 28 days after the filing of the petition serve a copy of the petition upon every person whose election or return is disputed by the petition These requirements under the High Court Rules for publication and service can clearly add up to a considerable financial burden to the petitioner

4311 The Commission has no difficulty with the fees service and advertising requirements of the High Court Rules in so far as they apply to petitions disputing elections The Commission does however agree with Justice Gaudron that the provisions in the Commonwealth Electoral Act 1918 relating to costs and legal representation are dated and inconsistent

4312 The history of the introduction in 1902 to 1905 of the provisions of the Commonwealth Electoral Act 1918 relating to costs and legal representation in the Court of Disputed Returns will not be canvassed in detail in this Submission However it is worth noting that the two Houses of Parliament were divided at that time over whether to legislate for a non-judicial parliamentary Elections and Qualifications Committee or a Court of Disputed Returns with full judicial powers to settle election disputes The primary cause of concern was the high cost of legal fees for respondents required to defend their election before a court against wealthy and possibly vexatious petitioners

4313 In the outcome a Court of Disputed Returns was agreed upon as being more impartial in the settling of election disputes than a Parliamentary committee However as a trade-off a provision was inserted in the Act limiting legal representation in order to protect elected parliamentarians from the costs of vexatious challenges Section 370 of the Commonwealth Electoral Act 1918 which provides that except by consent of all parties or by leave of the Court no party shall be represented by counsel or solicitor was therefore inserted by section 57 of the Commonwealth Electoral Act 1905

4314 As a corollary the deposit to be paid by the petitioner as security for costs was held at a low level in the expectation that court costs for the respondents would be contained by the limitation on legal representation The further trade-off was that by holding the deposit to a low level access to the court was not limited for the impecunious petitioner with a genuine dispute Section 195 of the Commonwealth

Electoral Act 1902 provided that the deposit for security for costs should be 50 pounds That amount has not substantially changed in the intervening 90 years and now stands at $100 in section 356 of the Act

4315 Despite the concerns of the early legislators to protect elected parliamentarians from wealthy and vexatious petitioners modern day realities are that respondents will rarely appear without legal representation and more often than not will hire a Queens Counsel whose fee is guaranteed from party or other sympathetic resources It is also unlikely that the court would decline to consent to such representation if there were to be any objection from the petitioner This suggests that section 370 of the Act limiting legal representation no longer serves any practical purpose

4316 The provision does not appear in any way to either advantage or disadvantage the petitioner The impecunious petitioner by obtaining waivers on fees and by appearing without legal representation has ready access to the court The problem that Justice Gaudron has highlighted is that petitioners are encouraged by the apparent limitation on legal representation to bring disputes to court which might never have survived proper legal advice

4317 If section 370 were to be deleted from the legislation then the logical nexus between that provision and section 356 which sets a low $100 as the petitionerrsquos deposit for security for costs would fall away However there are other provisions relating to costs in the Act sections 360 (1)(ix) 360(1)(4) 372 and 373 for example which would need to be considered as part of any general review of the issue of costs and legal representation that the Committee might recommend

Attachment 4

Extract from AEC submission No 96 of 23 October 1996 on Federal Court

61 During the course of the proceedings it appeared as if evidentiary matters might have to be resolved in the petition by the examination of declaration envelopes and the calling of witnesses This could have involved up to 1594 individual investigations The High Court sitting as the Court of Disputed Returns has made it clear on at least one recent occasion (the Webster v Deahm petition in 1993) that it is not amendable to dealing with such a load and would if such evidentiary matters were to be pressed refer the petition to the relevant State Supreme Court This option is available to the Court under section 354 of the CEA

62 However it became clear during proceedings in this petition that there was a preference by the Bench for the questions of law to be resolved by the High Court with only questions of evidence being determined by the Supreme Court rather than the whole of the petition being heard and determined by the Supreme Court It was also the preferred position of the AEC that if a petition were to be split and any questions of evidence were to be remitted to the Supreme Court then the evidentiary determinations should be sent back to the High Court for final decision on the appropriate relief

63 It is the view of the AEC that the High Court and not a Supreme Court of a State should make final determinations on the proper outcome of challenges to a federal election for example whether or not a federal election should be voided The interpretation of section 354 of the CEA by the Chief Justice on 15 August 1996 means that it is not possible for the evidentiary and determinative matters in a petition to be ldquosplitrdquo between the High Court and a Supreme Court under the legislation as it currently standshellip

73 The Snowdon petition also gave rise to a procedural issue about the ldquosplittingrdquo of petitions and the remitting of questions of evidence from the High Court to inferior courts

The AEC recommends that section 354 of the CEA be amended to enable the High Court to remit aspects of a petition to a Supreme Court but so that the High Court retains final jurisdiction on relief

Attachment 5

McClure v AEC (1999) 73 ALJR 1086

See attached

On 7 December 1998 Donald Kenneth Ditchburn filed an Election Petition pursuant to Div 1 of Pt XXII of the Electoral Act (Cth) (ldquothe Actrdquo) The petition was said to concern ldquothe election for the House of Representatives seat for the Division of Herbert held on Saturday 3 October 1998rdquo It alleged that the petitioner is enrolled in the Federal Division of Herbert in the State of Queensland and it appears from other allegations in the petition that he was eligible to vote in that Division in the election held on 3 October 1998

The Australian Electoral Commission seeks leave to enter an appearance in the proceeding and to be represented and be heard It seeks an order under O 16 r 4 of the High Court Rules that the name of the respondent to the petition be struck out It also seeks an order dismissing the petition or staying proceedings on the petition on the ground either that there is no reasonable or probable cause of action or suit or that the proceeding is an abuse of the process of the Court

As was the case in the other electoral petition which was instituted by Mr Ditchburn and with which I have dealt today Ditchburn v Australian Electoral Officer for Queensland [1999] HCA no reason was offered why the Commission should not have the leave it sought (under s 359 of the Act) and accordingly leave was given for it to appear be represented and heard on the petition Again however I need form no view on whether the respondent named in the petition was ldquoimproperly joinedrdquo within the meaning of O 16 r 4 of the Rules

The petitioner seeks to contend that the system of preferential voting for candidates in House of Representatives elections is contrary to the requirements of s 24 of the Constitution that the members of that House be ldquodirectly chosen by the peoplerdquo and s 30 of the Constitution that ldquoin the choosing of members each elector shall vole only oncerdquo In particular he alleges that ss 240(1)(b) 240(2) 274(7)(d) 274(7AA) 274(7AB) and 274(7AC) of the Act are invalid and he seeks a declaration to that effect and ldquoan order to annul the election of the Member for Herbert declared elected by the Divisional Returning Officer for Herbertrdquo pursuant to these provisionshellip

In my opinion these arguments [in the petition] are not tenable Some other arguments not raised by the petition were mentioned by the petitioner in oral argument They were by and large arguments of a political rather than legal nature Even if open to the petitioner sections 355 358 they do not assist in resolving the consyitulional issues that the petitioner sought to raise

In Langer v The Commonwealth (1996) 186 CLR 302 at least five members of the Court held at 316-317 per Brennan CJ 333 per Toohey and Gaudron JJ 348-349 per Gummow J that s 240 of the Act was a valid law within ss 31 and 51(xxxvi) of the Constitution and was not inconsistent with the requirement of s 24 that the House of Representatives shall be comprised of members ldquodirectly chosen by the people of the Commonwealthrdquo See also Judd v McKeon (1926) 38 CLR 380 Faderson v Bridger (1971) 126 CLR 217 And it may well be that the other two members of the Court were of the same opinion at 323 per Dawson J 340-341 per McHugh J The argument which the petitioner seeks to advance is at least to the extent that he relies on s 24 an argument which I am bound to hold would fail Even if Langer does not decide the further point on which the petitioner seeks to rely (that under the

preferential voting system a voter votes more than once contrary to s 30) that contention is one which must fail

Prior to Federation plural voting related to property qualification was allowed in Tasmania Western Australia and Queensland Attorney-General (Cth) Ex rel McKinlay v The Commonwealth (1975) 135 CLR 1 at 19 per Barwick CJ McGinty v Western Australia (1996) 186 CLR 140 at 281-282 per Gummow J It is clear from the Debates at the 1891 Convention in Sydney that the question of plural voting was well in the minds of the members of the Constitutional Conventions from which the terms of the Constitution emerged Official Record of the Debates of the Australasian Federal Convention (Sydney) 1891 vol 1 613-617 But the plural voting then under consideration permitted a voter to cast more than one expression of his or (in South Australia and Western Australia) her choice of candidate

The preferential voting system was provided for House of Representatives elections by s 124 of the Commonwealth Electoral Act 1918 and for the Senate by s 7 of the Commonwealth Electoral Act 1919 As McHugh J noted in Langer v The Commonwealth at 342 ldquoCompulsory preferential voting does not appear to have been introduced into Australia until 1911 when it was introduced in Western Australia But optional preferential voting was used in Queensland after 1892rdquo Even so the Constitution that emerged from the Constitutional Conventions ldquodid not entrench the secret ballot compulsory voting preferential or proportional votingrdquo McGinty v Western Australia (1996) 186 CLR 140 at 283 per Gummow J All that was said (so far as presently relevant) was that the members of the House of Representatives were to be ldquodirectly chosen by the peoplerdquo section 24 that until the Parliament otherwise provides ldquothe qualification of electors of members of the House of Representatives shall be in each State that which is prescribed by the law of the Slate as the qualification of electors of the more numerous House of Parliament of the Staterdquo section 30 and that ldquoin the choosing of members each elector shall vote only oncerdquo section 30

The petitioner placed some emphasis on what was said by McHugh J in Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106 at 228-233 about ldquorepresentative governmentrdquo But as Brennan CJ pointed out in McGinty v Western Australia at 169 the expressions ldquorepresentative governmentrdquo and ldquorepresentative democracyrdquo are not found in the Constitution and although they are useful terms to describe the effect of ss 7 and 24 ldquo[i]t is logically impermissible to treat lsquorepresentative democracyrsquo as though it were contained in the Constitution to attribute to the term a meaning or content derived from sources extrinsic to the Constitution and then to invalidate a law for inconsistency with the meaning or content so attributedrdquo

The requirements that members be ldquodirectly chosenrdquo and that ldquoeach elector shall vote only oncerdquo do not preclude the Parliament from providing (as it has) for a compulsory preferential voting system Langer v The Commonwealth Soegemeier v Macklin (1985) 58 ALR 768 Under that system each elector casts but one expression of his or her choice of member in one electoral division The choice is expressed in a complex way but it remains a single expression of the will of that voter And perhaps more relevantly the voter cannot cast a vote in more than one electoral district as voters could in those Colonies that permitted plural voting related to property qualifications The voter votes only once

No doubt it is right to say as the petitioner does that the distribution of preferences requires electoral officers to undertake the process prescribed in those parts of s 274 which deal with that subject But the performance of those tasks does not mean that the member is not ldquodirectly chosenrdquo as that expression is used in s 24

The petition cannot succeed It should be dismissed

9 Implications of the Ditchburn Decisions

91 Senate Group Ticket Voting

911 As discussed in part 71 above in this submission it is not unusual for independent Senate candidates to belatedly discover generally at the time of nomination that they are not entitled to appear on the ballot paper as a group ldquoabove the linerdquo and thereby take advantage of the ticket voting system for the Senate This may give rise to some protest at the ldquofairnessrdquo of sections 211 and 211A of the Electoral Act and can result in petitions to the Court of Disputed Returns after the election on the grounds that the law is both unconstitutional and ldquounfairrdquo to independent candidates

912 In Ditchburn v AEO Qld (unreported) Justice Hayne has confirmed the decisions in McClure v AEC (1999) 73 ALJR 1086 in Abbotto v AEC (1997) 71 ALJR 675 and in McKenzie v The Commonwealth (1984) 59 ALJR 190 that the Senate group ticket voting system is not unconstitutional and that it is not for the Court to decide whether the Senate group voting system is ldquofairrdquo or ldquounfairrdquo to independent candidates

913 In Ditchburn v AEO Qld Justice Hayne dealt with the further contention that the Senate group ticket voting is contrary to section 7 of the Constitution which requires that senators be ldquodirectly chosen by the peoplerdquo His Honour said that he did not accept the contention that sections 211 and 211A of the Electoral Act ldquoprescribe a method of electing Senators which resembles an electoral college and where Senators are indirectly chosen by the people of the Staterdquo

914 Full Preferential Voting

915 In Ditchburn v DRO Herbert (unreported) it was contended that full preferential voting is contrary to section 24 of the Constitution which requires that members be ldquodirectly chosen by the peoplerdquo and section 30 of the Constitution which requires that ldquoin the choosing of members each elector shall vote only oncerdquo

916 Justice Hayne did not accept that full preferential voting under section 240 of the Electoral Act is contrary to section 24 of the Constitution which requires that members be ldquodirectly chosen by the peoplerdquo In coming to this decision His Honour relied on the decision of the High Court in Langer v The Commonwealth (1996) 186 CLR 302 In Langer the High Court held that section 240 of the Electoral Act is a valid law within sections 31 and 51(xxxvi) of the Constitution and not inconsistent with the requirements of section 24 of the Constitution Justice Hayne noted that the decision in Langer was consistent with the decisions in Judd v McKeon (1926) 38 CLR 380 and Faderson v Bridger (1971) 126 CLR 217

917 Further Justice Hayne did not accept that full preferential voting is contrary to section 30 of the Constitution which requires that ldquoin the choosing of members each elector shall vote only oncerdquo In coming to this decision Justice Hayne relied on Attorney-General (Cth) Ex rel McKinlay v The Commonwealth (1975) 135 CLR 1 McGinty v Western Australia (1996) 186 CLR 140 Langer v The Commonwealth (1996) 186 CLR 302 and Soegemeier v Macklin (1985) 58 ALR 768

918 His Honour noted that prior to Federation plural voting on the basis of property qualifications was allowed in Tasmania Western Australia and Queensland It was clear from the Debates at the 1891 Convention in Sydney that the question of plural voting was well in the minds of the members of the Constitutional Conventions from which the terms of the Constitution emerged and hence the phrase ldquoin the choosing of members each elector shall vote only oncerdquo It is notable in this context that the Constitution that emerged from the Constitutional Conventions did not entrench either the secret ballot compulsory voting preferential voting or proportional voting

919 His Honour concluded that under the full preferential voting system each elector casts but one expression of his or her choice of member in one electoral Division The choice is expressed in a complex way but it remains a single expression of the will of that voter That is at federal elections with full preferential voting the voter votes only once All that the Constitution appears to proscribe is plural voting based on property qualifications as was permitted in colonial times

10 Summary of Outcomes in the 1998 Election Petitions

bull The Court of Disputed Returns has jurisdiction to hear election petitions disputing the constitutional qualifications of candidates

bull The United Kingdom is a ldquoforeign powerrdquo under the terms of section 44(i) of the Constitution

bull Ms Heather Hill a elected candidate for the Senate in Queensland was disqualified under section 44(i) of the Constitution as a British subject at the time of her nomination

bull The Senate group voting system is a valid law of the Parliament under the terms of the Constitution including sections 7 and 24 which require that senators and members be ldquodirectly chosen by the peoplerdquo

bull It is not for the Court to decide whether or not the Senate group voting system is fair or unfair to independent candidates

bull There is no provision for class actions in election petitions and in any case electors can only dispute the elections for which they were entitled to vote

bull The Court will apply the law as provided by the Parliament within the terms of the Constitution and there is nothing to suggest that Royal Assent was not properly given to the Electoral Act and its amending Acts

bull Section 240 of the Electoral Act which provides for full preferential voting is a valid law within the terms of the Constitution including sections 7 and 24 which require that members and senators be ldquodirectly chosen by the peoplerdquo and sections 8 and 30 which require that ldquoeach elector shall vote only oncerdquo

ATTACHMENTS

Attachment 1

Sue v Hill (S1791998 Gleeson CJ 19 March 1999 unreported)

See attached

Attachment 2

Sue v Hill (1999) 73 ALJR 1016

See attached

Attachment 3

Extract from AEC submission No124 of 15 November 1993 re costs

432 During the hearing on 1 October 1993 on the question of costs Justice Gaudron made a number of observations on the ease with which election petitions which may have no legal merit can be lodged with the Court of Disputed Returns under the current provisions of the Commonwealth Electoral Act 1918 For example on page 54 of the transcript Justice Gaudron said the following

The Act is by no means of model of clarity as to who can bring petitions it sets it up so that a person can come without the benefit of legal advice which might deflect it In fact it discourages positively prohibits legal representation without leave so that the Act is virtually inviting people to bring petitions which have not had the benefit of legal analysis

433 Her Honour then appeared to agree with the proposition of Mr Gageler for the Commonwealth that whilst the $100 security for costs required under section 356 of the Act in order to lodge a petition may have been a deterrent to vexatious or frivolous petitioners when it was first legislated in 1902 (when it was 50 pounds) it can hardly be regarded as a meaningful deterrent these days

434 In discussing with Mr Gageler the scheme of the Act which appears to encourage unimpeded access to the Court of Disputed Returns by any and all petitioners Justice Gaudron said at page 55 of the transcript

Virtually unimpeded access and as you tell me five out of six [of the petitions] have failed One well knows that some of the grounds that have been advanced in these petitions - and I put Mr Hudsons to one side - have been grounds that one would think would not have survived legal advice

435 In reference to section 370 of the Act which provides that no party to the petition shall except by consent of all parties or by leave of the Court be represented by counsel or solicitor [and] in no case shall more than one counsel or solicitor appear on behalf of any party Justice Gaudron went on to say

But very rarely do you have a provision such as this - you do in some Acts but not commonly - no legal representation except by leave So what you are doing is you are in fact encouraging people to come to the Court with arguments that do not necessarily have a basis in law

436 And finally on page 58 of the transcript Justice Gaudron said

I was hoping maybe that the legislature might see fit to do something with respect to the provisions as they stand It is by no means a model of clarity is it that part of the Act

437 These comments from the Bench are directed to petitions that ldquowould not have survived legal advicerdquo that is vexatious andor frivolous petitions and not to the Hudson petition in particular as is obvious from Justice Gaudronrsquos comment that the ease of access to the Court for petitioners of limited means such as Mr Hudson is ldquocommendablerdquo (see paragraph 427 above)

438 If any review of the provisions of the Act relating to costs and legal representation were to be undertaken it would need to be in the context of the following considerations

439 For the average petitioner it costs a total of $900 in set fees and charges to lodge a petition made up of the $100 deposit as security for costs under section 356 of the Commonwealth Electoral Act 1918 and the $300 filing fee and the $500 hearing fee under regulations 4(1) and 5(1) respectively of the High Court of Australia (Fees) Regulations If a petitioner can provide a health care card or a health benefit card or provide other reasons acceptable to the High Court Registry that indicate financial constraints then the High Court Regulations allow the $800 High Court fees to be waived There is no waiver under the Commonwealth Electoral Act 1918 for the $100 deposit as security for costs

4310 In addition to these set fees and the deposit under Order 68 rule 3 of the High Court Rules forthwith after filing a petition the petitioner must arrange for the petition to be published in the Commonwealth Gazette and the relevant State Gazette and in the case of an election for the House of Representatives the petitioner must publish a notice giving details of the petition in a newspaper circulating in the relevant electoral Division Further under Order 68 rule 5 of the Rules the petitioner must 28 days after the filing of the petition serve a copy of the petition upon every person whose election or return is disputed by the petition These requirements under the High Court Rules for publication and service can clearly add up to a considerable financial burden to the petitioner

4311 The Commission has no difficulty with the fees service and advertising requirements of the High Court Rules in so far as they apply to petitions disputing elections The Commission does however agree with Justice Gaudron that the provisions in the Commonwealth Electoral Act 1918 relating to costs and legal representation are dated and inconsistent

4312 The history of the introduction in 1902 to 1905 of the provisions of the Commonwealth Electoral Act 1918 relating to costs and legal representation in the Court of Disputed Returns will not be canvassed in detail in this Submission However it is worth noting that the two Houses of Parliament were divided at that time over whether to legislate for a non-judicial parliamentary Elections and Qualifications Committee or a Court of Disputed Returns with full judicial powers to settle election disputes The primary cause of concern was the high cost of legal fees for respondents required to defend their election before a court against wealthy and possibly vexatious petitioners

4313 In the outcome a Court of Disputed Returns was agreed upon as being more impartial in the settling of election disputes than a Parliamentary committee However as a trade-off a provision was inserted in the Act limiting legal representation in order to protect elected parliamentarians from the costs of vexatious challenges Section 370 of the Commonwealth Electoral Act 1918 which provides that except by consent of all parties or by leave of the Court no party shall be represented by counsel or solicitor was therefore inserted by section 57 of the Commonwealth Electoral Act 1905

4314 As a corollary the deposit to be paid by the petitioner as security for costs was held at a low level in the expectation that court costs for the respondents would be contained by the limitation on legal representation The further trade-off was that by holding the deposit to a low level access to the court was not limited for the impecunious petitioner with a genuine dispute Section 195 of the Commonwealth

Electoral Act 1902 provided that the deposit for security for costs should be 50 pounds That amount has not substantially changed in the intervening 90 years and now stands at $100 in section 356 of the Act

4315 Despite the concerns of the early legislators to protect elected parliamentarians from wealthy and vexatious petitioners modern day realities are that respondents will rarely appear without legal representation and more often than not will hire a Queens Counsel whose fee is guaranteed from party or other sympathetic resources It is also unlikely that the court would decline to consent to such representation if there were to be any objection from the petitioner This suggests that section 370 of the Act limiting legal representation no longer serves any practical purpose

4316 The provision does not appear in any way to either advantage or disadvantage the petitioner The impecunious petitioner by obtaining waivers on fees and by appearing without legal representation has ready access to the court The problem that Justice Gaudron has highlighted is that petitioners are encouraged by the apparent limitation on legal representation to bring disputes to court which might never have survived proper legal advice

4317 If section 370 were to be deleted from the legislation then the logical nexus between that provision and section 356 which sets a low $100 as the petitionerrsquos deposit for security for costs would fall away However there are other provisions relating to costs in the Act sections 360 (1)(ix) 360(1)(4) 372 and 373 for example which would need to be considered as part of any general review of the issue of costs and legal representation that the Committee might recommend

Attachment 4

Extract from AEC submission No 96 of 23 October 1996 on Federal Court

61 During the course of the proceedings it appeared as if evidentiary matters might have to be resolved in the petition by the examination of declaration envelopes and the calling of witnesses This could have involved up to 1594 individual investigations The High Court sitting as the Court of Disputed Returns has made it clear on at least one recent occasion (the Webster v Deahm petition in 1993) that it is not amendable to dealing with such a load and would if such evidentiary matters were to be pressed refer the petition to the relevant State Supreme Court This option is available to the Court under section 354 of the CEA

62 However it became clear during proceedings in this petition that there was a preference by the Bench for the questions of law to be resolved by the High Court with only questions of evidence being determined by the Supreme Court rather than the whole of the petition being heard and determined by the Supreme Court It was also the preferred position of the AEC that if a petition were to be split and any questions of evidence were to be remitted to the Supreme Court then the evidentiary determinations should be sent back to the High Court for final decision on the appropriate relief

63 It is the view of the AEC that the High Court and not a Supreme Court of a State should make final determinations on the proper outcome of challenges to a federal election for example whether or not a federal election should be voided The interpretation of section 354 of the CEA by the Chief Justice on 15 August 1996 means that it is not possible for the evidentiary and determinative matters in a petition to be ldquosplitrdquo between the High Court and a Supreme Court under the legislation as it currently standshellip

73 The Snowdon petition also gave rise to a procedural issue about the ldquosplittingrdquo of petitions and the remitting of questions of evidence from the High Court to inferior courts

The AEC recommends that section 354 of the CEA be amended to enable the High Court to remit aspects of a petition to a Supreme Court but so that the High Court retains final jurisdiction on relief

Attachment 5

McClure v AEC (1999) 73 ALJR 1086

See attached

preferential voting system a voter votes more than once contrary to s 30) that contention is one which must fail

Prior to Federation plural voting related to property qualification was allowed in Tasmania Western Australia and Queensland Attorney-General (Cth) Ex rel McKinlay v The Commonwealth (1975) 135 CLR 1 at 19 per Barwick CJ McGinty v Western Australia (1996) 186 CLR 140 at 281-282 per Gummow J It is clear from the Debates at the 1891 Convention in Sydney that the question of plural voting was well in the minds of the members of the Constitutional Conventions from which the terms of the Constitution emerged Official Record of the Debates of the Australasian Federal Convention (Sydney) 1891 vol 1 613-617 But the plural voting then under consideration permitted a voter to cast more than one expression of his or (in South Australia and Western Australia) her choice of candidate

The preferential voting system was provided for House of Representatives elections by s 124 of the Commonwealth Electoral Act 1918 and for the Senate by s 7 of the Commonwealth Electoral Act 1919 As McHugh J noted in Langer v The Commonwealth at 342 ldquoCompulsory preferential voting does not appear to have been introduced into Australia until 1911 when it was introduced in Western Australia But optional preferential voting was used in Queensland after 1892rdquo Even so the Constitution that emerged from the Constitutional Conventions ldquodid not entrench the secret ballot compulsory voting preferential or proportional votingrdquo McGinty v Western Australia (1996) 186 CLR 140 at 283 per Gummow J All that was said (so far as presently relevant) was that the members of the House of Representatives were to be ldquodirectly chosen by the peoplerdquo section 24 that until the Parliament otherwise provides ldquothe qualification of electors of members of the House of Representatives shall be in each State that which is prescribed by the law of the Slate as the qualification of electors of the more numerous House of Parliament of the Staterdquo section 30 and that ldquoin the choosing of members each elector shall vote only oncerdquo section 30

The petitioner placed some emphasis on what was said by McHugh J in Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106 at 228-233 about ldquorepresentative governmentrdquo But as Brennan CJ pointed out in McGinty v Western Australia at 169 the expressions ldquorepresentative governmentrdquo and ldquorepresentative democracyrdquo are not found in the Constitution and although they are useful terms to describe the effect of ss 7 and 24 ldquo[i]t is logically impermissible to treat lsquorepresentative democracyrsquo as though it were contained in the Constitution to attribute to the term a meaning or content derived from sources extrinsic to the Constitution and then to invalidate a law for inconsistency with the meaning or content so attributedrdquo

The requirements that members be ldquodirectly chosenrdquo and that ldquoeach elector shall vote only oncerdquo do not preclude the Parliament from providing (as it has) for a compulsory preferential voting system Langer v The Commonwealth Soegemeier v Macklin (1985) 58 ALR 768 Under that system each elector casts but one expression of his or her choice of member in one electoral division The choice is expressed in a complex way but it remains a single expression of the will of that voter And perhaps more relevantly the voter cannot cast a vote in more than one electoral district as voters could in those Colonies that permitted plural voting related to property qualifications The voter votes only once

No doubt it is right to say as the petitioner does that the distribution of preferences requires electoral officers to undertake the process prescribed in those parts of s 274 which deal with that subject But the performance of those tasks does not mean that the member is not ldquodirectly chosenrdquo as that expression is used in s 24

The petition cannot succeed It should be dismissed

9 Implications of the Ditchburn Decisions

91 Senate Group Ticket Voting

911 As discussed in part 71 above in this submission it is not unusual for independent Senate candidates to belatedly discover generally at the time of nomination that they are not entitled to appear on the ballot paper as a group ldquoabove the linerdquo and thereby take advantage of the ticket voting system for the Senate This may give rise to some protest at the ldquofairnessrdquo of sections 211 and 211A of the Electoral Act and can result in petitions to the Court of Disputed Returns after the election on the grounds that the law is both unconstitutional and ldquounfairrdquo to independent candidates

912 In Ditchburn v AEO Qld (unreported) Justice Hayne has confirmed the decisions in McClure v AEC (1999) 73 ALJR 1086 in Abbotto v AEC (1997) 71 ALJR 675 and in McKenzie v The Commonwealth (1984) 59 ALJR 190 that the Senate group ticket voting system is not unconstitutional and that it is not for the Court to decide whether the Senate group voting system is ldquofairrdquo or ldquounfairrdquo to independent candidates

913 In Ditchburn v AEO Qld Justice Hayne dealt with the further contention that the Senate group ticket voting is contrary to section 7 of the Constitution which requires that senators be ldquodirectly chosen by the peoplerdquo His Honour said that he did not accept the contention that sections 211 and 211A of the Electoral Act ldquoprescribe a method of electing Senators which resembles an electoral college and where Senators are indirectly chosen by the people of the Staterdquo

914 Full Preferential Voting

915 In Ditchburn v DRO Herbert (unreported) it was contended that full preferential voting is contrary to section 24 of the Constitution which requires that members be ldquodirectly chosen by the peoplerdquo and section 30 of the Constitution which requires that ldquoin the choosing of members each elector shall vote only oncerdquo

916 Justice Hayne did not accept that full preferential voting under section 240 of the Electoral Act is contrary to section 24 of the Constitution which requires that members be ldquodirectly chosen by the peoplerdquo In coming to this decision His Honour relied on the decision of the High Court in Langer v The Commonwealth (1996) 186 CLR 302 In Langer the High Court held that section 240 of the Electoral Act is a valid law within sections 31 and 51(xxxvi) of the Constitution and not inconsistent with the requirements of section 24 of the Constitution Justice Hayne noted that the decision in Langer was consistent with the decisions in Judd v McKeon (1926) 38 CLR 380 and Faderson v Bridger (1971) 126 CLR 217

917 Further Justice Hayne did not accept that full preferential voting is contrary to section 30 of the Constitution which requires that ldquoin the choosing of members each elector shall vote only oncerdquo In coming to this decision Justice Hayne relied on Attorney-General (Cth) Ex rel McKinlay v The Commonwealth (1975) 135 CLR 1 McGinty v Western Australia (1996) 186 CLR 140 Langer v The Commonwealth (1996) 186 CLR 302 and Soegemeier v Macklin (1985) 58 ALR 768

918 His Honour noted that prior to Federation plural voting on the basis of property qualifications was allowed in Tasmania Western Australia and Queensland It was clear from the Debates at the 1891 Convention in Sydney that the question of plural voting was well in the minds of the members of the Constitutional Conventions from which the terms of the Constitution emerged and hence the phrase ldquoin the choosing of members each elector shall vote only oncerdquo It is notable in this context that the Constitution that emerged from the Constitutional Conventions did not entrench either the secret ballot compulsory voting preferential voting or proportional voting

919 His Honour concluded that under the full preferential voting system each elector casts but one expression of his or her choice of member in one electoral Division The choice is expressed in a complex way but it remains a single expression of the will of that voter That is at federal elections with full preferential voting the voter votes only once All that the Constitution appears to proscribe is plural voting based on property qualifications as was permitted in colonial times

10 Summary of Outcomes in the 1998 Election Petitions

bull The Court of Disputed Returns has jurisdiction to hear election petitions disputing the constitutional qualifications of candidates

bull The United Kingdom is a ldquoforeign powerrdquo under the terms of section 44(i) of the Constitution

bull Ms Heather Hill a elected candidate for the Senate in Queensland was disqualified under section 44(i) of the Constitution as a British subject at the time of her nomination

bull The Senate group voting system is a valid law of the Parliament under the terms of the Constitution including sections 7 and 24 which require that senators and members be ldquodirectly chosen by the peoplerdquo

bull It is not for the Court to decide whether or not the Senate group voting system is fair or unfair to independent candidates

bull There is no provision for class actions in election petitions and in any case electors can only dispute the elections for which they were entitled to vote

bull The Court will apply the law as provided by the Parliament within the terms of the Constitution and there is nothing to suggest that Royal Assent was not properly given to the Electoral Act and its amending Acts

bull Section 240 of the Electoral Act which provides for full preferential voting is a valid law within the terms of the Constitution including sections 7 and 24 which require that members and senators be ldquodirectly chosen by the peoplerdquo and sections 8 and 30 which require that ldquoeach elector shall vote only oncerdquo

ATTACHMENTS

Attachment 1

Sue v Hill (S1791998 Gleeson CJ 19 March 1999 unreported)

See attached

Attachment 2

Sue v Hill (1999) 73 ALJR 1016

See attached

Attachment 3

Extract from AEC submission No124 of 15 November 1993 re costs

432 During the hearing on 1 October 1993 on the question of costs Justice Gaudron made a number of observations on the ease with which election petitions which may have no legal merit can be lodged with the Court of Disputed Returns under the current provisions of the Commonwealth Electoral Act 1918 For example on page 54 of the transcript Justice Gaudron said the following

The Act is by no means of model of clarity as to who can bring petitions it sets it up so that a person can come without the benefit of legal advice which might deflect it In fact it discourages positively prohibits legal representation without leave so that the Act is virtually inviting people to bring petitions which have not had the benefit of legal analysis

433 Her Honour then appeared to agree with the proposition of Mr Gageler for the Commonwealth that whilst the $100 security for costs required under section 356 of the Act in order to lodge a petition may have been a deterrent to vexatious or frivolous petitioners when it was first legislated in 1902 (when it was 50 pounds) it can hardly be regarded as a meaningful deterrent these days

434 In discussing with Mr Gageler the scheme of the Act which appears to encourage unimpeded access to the Court of Disputed Returns by any and all petitioners Justice Gaudron said at page 55 of the transcript

Virtually unimpeded access and as you tell me five out of six [of the petitions] have failed One well knows that some of the grounds that have been advanced in these petitions - and I put Mr Hudsons to one side - have been grounds that one would think would not have survived legal advice

435 In reference to section 370 of the Act which provides that no party to the petition shall except by consent of all parties or by leave of the Court be represented by counsel or solicitor [and] in no case shall more than one counsel or solicitor appear on behalf of any party Justice Gaudron went on to say

But very rarely do you have a provision such as this - you do in some Acts but not commonly - no legal representation except by leave So what you are doing is you are in fact encouraging people to come to the Court with arguments that do not necessarily have a basis in law

436 And finally on page 58 of the transcript Justice Gaudron said

I was hoping maybe that the legislature might see fit to do something with respect to the provisions as they stand It is by no means a model of clarity is it that part of the Act

437 These comments from the Bench are directed to petitions that ldquowould not have survived legal advicerdquo that is vexatious andor frivolous petitions and not to the Hudson petition in particular as is obvious from Justice Gaudronrsquos comment that the ease of access to the Court for petitioners of limited means such as Mr Hudson is ldquocommendablerdquo (see paragraph 427 above)

438 If any review of the provisions of the Act relating to costs and legal representation were to be undertaken it would need to be in the context of the following considerations

439 For the average petitioner it costs a total of $900 in set fees and charges to lodge a petition made up of the $100 deposit as security for costs under section 356 of the Commonwealth Electoral Act 1918 and the $300 filing fee and the $500 hearing fee under regulations 4(1) and 5(1) respectively of the High Court of Australia (Fees) Regulations If a petitioner can provide a health care card or a health benefit card or provide other reasons acceptable to the High Court Registry that indicate financial constraints then the High Court Regulations allow the $800 High Court fees to be waived There is no waiver under the Commonwealth Electoral Act 1918 for the $100 deposit as security for costs

4310 In addition to these set fees and the deposit under Order 68 rule 3 of the High Court Rules forthwith after filing a petition the petitioner must arrange for the petition to be published in the Commonwealth Gazette and the relevant State Gazette and in the case of an election for the House of Representatives the petitioner must publish a notice giving details of the petition in a newspaper circulating in the relevant electoral Division Further under Order 68 rule 5 of the Rules the petitioner must 28 days after the filing of the petition serve a copy of the petition upon every person whose election or return is disputed by the petition These requirements under the High Court Rules for publication and service can clearly add up to a considerable financial burden to the petitioner

4311 The Commission has no difficulty with the fees service and advertising requirements of the High Court Rules in so far as they apply to petitions disputing elections The Commission does however agree with Justice Gaudron that the provisions in the Commonwealth Electoral Act 1918 relating to costs and legal representation are dated and inconsistent

4312 The history of the introduction in 1902 to 1905 of the provisions of the Commonwealth Electoral Act 1918 relating to costs and legal representation in the Court of Disputed Returns will not be canvassed in detail in this Submission However it is worth noting that the two Houses of Parliament were divided at that time over whether to legislate for a non-judicial parliamentary Elections and Qualifications Committee or a Court of Disputed Returns with full judicial powers to settle election disputes The primary cause of concern was the high cost of legal fees for respondents required to defend their election before a court against wealthy and possibly vexatious petitioners

4313 In the outcome a Court of Disputed Returns was agreed upon as being more impartial in the settling of election disputes than a Parliamentary committee However as a trade-off a provision was inserted in the Act limiting legal representation in order to protect elected parliamentarians from the costs of vexatious challenges Section 370 of the Commonwealth Electoral Act 1918 which provides that except by consent of all parties or by leave of the Court no party shall be represented by counsel or solicitor was therefore inserted by section 57 of the Commonwealth Electoral Act 1905

4314 As a corollary the deposit to be paid by the petitioner as security for costs was held at a low level in the expectation that court costs for the respondents would be contained by the limitation on legal representation The further trade-off was that by holding the deposit to a low level access to the court was not limited for the impecunious petitioner with a genuine dispute Section 195 of the Commonwealth

Electoral Act 1902 provided that the deposit for security for costs should be 50 pounds That amount has not substantially changed in the intervening 90 years and now stands at $100 in section 356 of the Act

4315 Despite the concerns of the early legislators to protect elected parliamentarians from wealthy and vexatious petitioners modern day realities are that respondents will rarely appear without legal representation and more often than not will hire a Queens Counsel whose fee is guaranteed from party or other sympathetic resources It is also unlikely that the court would decline to consent to such representation if there were to be any objection from the petitioner This suggests that section 370 of the Act limiting legal representation no longer serves any practical purpose

4316 The provision does not appear in any way to either advantage or disadvantage the petitioner The impecunious petitioner by obtaining waivers on fees and by appearing without legal representation has ready access to the court The problem that Justice Gaudron has highlighted is that petitioners are encouraged by the apparent limitation on legal representation to bring disputes to court which might never have survived proper legal advice

4317 If section 370 were to be deleted from the legislation then the logical nexus between that provision and section 356 which sets a low $100 as the petitionerrsquos deposit for security for costs would fall away However there are other provisions relating to costs in the Act sections 360 (1)(ix) 360(1)(4) 372 and 373 for example which would need to be considered as part of any general review of the issue of costs and legal representation that the Committee might recommend

Attachment 4

Extract from AEC submission No 96 of 23 October 1996 on Federal Court

61 During the course of the proceedings it appeared as if evidentiary matters might have to be resolved in the petition by the examination of declaration envelopes and the calling of witnesses This could have involved up to 1594 individual investigations The High Court sitting as the Court of Disputed Returns has made it clear on at least one recent occasion (the Webster v Deahm petition in 1993) that it is not amendable to dealing with such a load and would if such evidentiary matters were to be pressed refer the petition to the relevant State Supreme Court This option is available to the Court under section 354 of the CEA

62 However it became clear during proceedings in this petition that there was a preference by the Bench for the questions of law to be resolved by the High Court with only questions of evidence being determined by the Supreme Court rather than the whole of the petition being heard and determined by the Supreme Court It was also the preferred position of the AEC that if a petition were to be split and any questions of evidence were to be remitted to the Supreme Court then the evidentiary determinations should be sent back to the High Court for final decision on the appropriate relief

63 It is the view of the AEC that the High Court and not a Supreme Court of a State should make final determinations on the proper outcome of challenges to a federal election for example whether or not a federal election should be voided The interpretation of section 354 of the CEA by the Chief Justice on 15 August 1996 means that it is not possible for the evidentiary and determinative matters in a petition to be ldquosplitrdquo between the High Court and a Supreme Court under the legislation as it currently standshellip

73 The Snowdon petition also gave rise to a procedural issue about the ldquosplittingrdquo of petitions and the remitting of questions of evidence from the High Court to inferior courts

The AEC recommends that section 354 of the CEA be amended to enable the High Court to remit aspects of a petition to a Supreme Court but so that the High Court retains final jurisdiction on relief

Attachment 5

McClure v AEC (1999) 73 ALJR 1086

See attached

No doubt it is right to say as the petitioner does that the distribution of preferences requires electoral officers to undertake the process prescribed in those parts of s 274 which deal with that subject But the performance of those tasks does not mean that the member is not ldquodirectly chosenrdquo as that expression is used in s 24

The petition cannot succeed It should be dismissed

9 Implications of the Ditchburn Decisions

91 Senate Group Ticket Voting

911 As discussed in part 71 above in this submission it is not unusual for independent Senate candidates to belatedly discover generally at the time of nomination that they are not entitled to appear on the ballot paper as a group ldquoabove the linerdquo and thereby take advantage of the ticket voting system for the Senate This may give rise to some protest at the ldquofairnessrdquo of sections 211 and 211A of the Electoral Act and can result in petitions to the Court of Disputed Returns after the election on the grounds that the law is both unconstitutional and ldquounfairrdquo to independent candidates

912 In Ditchburn v AEO Qld (unreported) Justice Hayne has confirmed the decisions in McClure v AEC (1999) 73 ALJR 1086 in Abbotto v AEC (1997) 71 ALJR 675 and in McKenzie v The Commonwealth (1984) 59 ALJR 190 that the Senate group ticket voting system is not unconstitutional and that it is not for the Court to decide whether the Senate group voting system is ldquofairrdquo or ldquounfairrdquo to independent candidates

913 In Ditchburn v AEO Qld Justice Hayne dealt with the further contention that the Senate group ticket voting is contrary to section 7 of the Constitution which requires that senators be ldquodirectly chosen by the peoplerdquo His Honour said that he did not accept the contention that sections 211 and 211A of the Electoral Act ldquoprescribe a method of electing Senators which resembles an electoral college and where Senators are indirectly chosen by the people of the Staterdquo

914 Full Preferential Voting

915 In Ditchburn v DRO Herbert (unreported) it was contended that full preferential voting is contrary to section 24 of the Constitution which requires that members be ldquodirectly chosen by the peoplerdquo and section 30 of the Constitution which requires that ldquoin the choosing of members each elector shall vote only oncerdquo

916 Justice Hayne did not accept that full preferential voting under section 240 of the Electoral Act is contrary to section 24 of the Constitution which requires that members be ldquodirectly chosen by the peoplerdquo In coming to this decision His Honour relied on the decision of the High Court in Langer v The Commonwealth (1996) 186 CLR 302 In Langer the High Court held that section 240 of the Electoral Act is a valid law within sections 31 and 51(xxxvi) of the Constitution and not inconsistent with the requirements of section 24 of the Constitution Justice Hayne noted that the decision in Langer was consistent with the decisions in Judd v McKeon (1926) 38 CLR 380 and Faderson v Bridger (1971) 126 CLR 217

917 Further Justice Hayne did not accept that full preferential voting is contrary to section 30 of the Constitution which requires that ldquoin the choosing of members each elector shall vote only oncerdquo In coming to this decision Justice Hayne relied on Attorney-General (Cth) Ex rel McKinlay v The Commonwealth (1975) 135 CLR 1 McGinty v Western Australia (1996) 186 CLR 140 Langer v The Commonwealth (1996) 186 CLR 302 and Soegemeier v Macklin (1985) 58 ALR 768

918 His Honour noted that prior to Federation plural voting on the basis of property qualifications was allowed in Tasmania Western Australia and Queensland It was clear from the Debates at the 1891 Convention in Sydney that the question of plural voting was well in the minds of the members of the Constitutional Conventions from which the terms of the Constitution emerged and hence the phrase ldquoin the choosing of members each elector shall vote only oncerdquo It is notable in this context that the Constitution that emerged from the Constitutional Conventions did not entrench either the secret ballot compulsory voting preferential voting or proportional voting

919 His Honour concluded that under the full preferential voting system each elector casts but one expression of his or her choice of member in one electoral Division The choice is expressed in a complex way but it remains a single expression of the will of that voter That is at federal elections with full preferential voting the voter votes only once All that the Constitution appears to proscribe is plural voting based on property qualifications as was permitted in colonial times

10 Summary of Outcomes in the 1998 Election Petitions

bull The Court of Disputed Returns has jurisdiction to hear election petitions disputing the constitutional qualifications of candidates

bull The United Kingdom is a ldquoforeign powerrdquo under the terms of section 44(i) of the Constitution

bull Ms Heather Hill a elected candidate for the Senate in Queensland was disqualified under section 44(i) of the Constitution as a British subject at the time of her nomination

bull The Senate group voting system is a valid law of the Parliament under the terms of the Constitution including sections 7 and 24 which require that senators and members be ldquodirectly chosen by the peoplerdquo

bull It is not for the Court to decide whether or not the Senate group voting system is fair or unfair to independent candidates

bull There is no provision for class actions in election petitions and in any case electors can only dispute the elections for which they were entitled to vote

bull The Court will apply the law as provided by the Parliament within the terms of the Constitution and there is nothing to suggest that Royal Assent was not properly given to the Electoral Act and its amending Acts

bull Section 240 of the Electoral Act which provides for full preferential voting is a valid law within the terms of the Constitution including sections 7 and 24 which require that members and senators be ldquodirectly chosen by the peoplerdquo and sections 8 and 30 which require that ldquoeach elector shall vote only oncerdquo

ATTACHMENTS

Attachment 1

Sue v Hill (S1791998 Gleeson CJ 19 March 1999 unreported)

See attached

Attachment 2

Sue v Hill (1999) 73 ALJR 1016

See attached

Attachment 3

Extract from AEC submission No124 of 15 November 1993 re costs

432 During the hearing on 1 October 1993 on the question of costs Justice Gaudron made a number of observations on the ease with which election petitions which may have no legal merit can be lodged with the Court of Disputed Returns under the current provisions of the Commonwealth Electoral Act 1918 For example on page 54 of the transcript Justice Gaudron said the following

The Act is by no means of model of clarity as to who can bring petitions it sets it up so that a person can come without the benefit of legal advice which might deflect it In fact it discourages positively prohibits legal representation without leave so that the Act is virtually inviting people to bring petitions which have not had the benefit of legal analysis

433 Her Honour then appeared to agree with the proposition of Mr Gageler for the Commonwealth that whilst the $100 security for costs required under section 356 of the Act in order to lodge a petition may have been a deterrent to vexatious or frivolous petitioners when it was first legislated in 1902 (when it was 50 pounds) it can hardly be regarded as a meaningful deterrent these days

434 In discussing with Mr Gageler the scheme of the Act which appears to encourage unimpeded access to the Court of Disputed Returns by any and all petitioners Justice Gaudron said at page 55 of the transcript

Virtually unimpeded access and as you tell me five out of six [of the petitions] have failed One well knows that some of the grounds that have been advanced in these petitions - and I put Mr Hudsons to one side - have been grounds that one would think would not have survived legal advice

435 In reference to section 370 of the Act which provides that no party to the petition shall except by consent of all parties or by leave of the Court be represented by counsel or solicitor [and] in no case shall more than one counsel or solicitor appear on behalf of any party Justice Gaudron went on to say

But very rarely do you have a provision such as this - you do in some Acts but not commonly - no legal representation except by leave So what you are doing is you are in fact encouraging people to come to the Court with arguments that do not necessarily have a basis in law

436 And finally on page 58 of the transcript Justice Gaudron said

I was hoping maybe that the legislature might see fit to do something with respect to the provisions as they stand It is by no means a model of clarity is it that part of the Act

437 These comments from the Bench are directed to petitions that ldquowould not have survived legal advicerdquo that is vexatious andor frivolous petitions and not to the Hudson petition in particular as is obvious from Justice Gaudronrsquos comment that the ease of access to the Court for petitioners of limited means such as Mr Hudson is ldquocommendablerdquo (see paragraph 427 above)

438 If any review of the provisions of the Act relating to costs and legal representation were to be undertaken it would need to be in the context of the following considerations

439 For the average petitioner it costs a total of $900 in set fees and charges to lodge a petition made up of the $100 deposit as security for costs under section 356 of the Commonwealth Electoral Act 1918 and the $300 filing fee and the $500 hearing fee under regulations 4(1) and 5(1) respectively of the High Court of Australia (Fees) Regulations If a petitioner can provide a health care card or a health benefit card or provide other reasons acceptable to the High Court Registry that indicate financial constraints then the High Court Regulations allow the $800 High Court fees to be waived There is no waiver under the Commonwealth Electoral Act 1918 for the $100 deposit as security for costs

4310 In addition to these set fees and the deposit under Order 68 rule 3 of the High Court Rules forthwith after filing a petition the petitioner must arrange for the petition to be published in the Commonwealth Gazette and the relevant State Gazette and in the case of an election for the House of Representatives the petitioner must publish a notice giving details of the petition in a newspaper circulating in the relevant electoral Division Further under Order 68 rule 5 of the Rules the petitioner must 28 days after the filing of the petition serve a copy of the petition upon every person whose election or return is disputed by the petition These requirements under the High Court Rules for publication and service can clearly add up to a considerable financial burden to the petitioner

4311 The Commission has no difficulty with the fees service and advertising requirements of the High Court Rules in so far as they apply to petitions disputing elections The Commission does however agree with Justice Gaudron that the provisions in the Commonwealth Electoral Act 1918 relating to costs and legal representation are dated and inconsistent

4312 The history of the introduction in 1902 to 1905 of the provisions of the Commonwealth Electoral Act 1918 relating to costs and legal representation in the Court of Disputed Returns will not be canvassed in detail in this Submission However it is worth noting that the two Houses of Parliament were divided at that time over whether to legislate for a non-judicial parliamentary Elections and Qualifications Committee or a Court of Disputed Returns with full judicial powers to settle election disputes The primary cause of concern was the high cost of legal fees for respondents required to defend their election before a court against wealthy and possibly vexatious petitioners

4313 In the outcome a Court of Disputed Returns was agreed upon as being more impartial in the settling of election disputes than a Parliamentary committee However as a trade-off a provision was inserted in the Act limiting legal representation in order to protect elected parliamentarians from the costs of vexatious challenges Section 370 of the Commonwealth Electoral Act 1918 which provides that except by consent of all parties or by leave of the Court no party shall be represented by counsel or solicitor was therefore inserted by section 57 of the Commonwealth Electoral Act 1905

4314 As a corollary the deposit to be paid by the petitioner as security for costs was held at a low level in the expectation that court costs for the respondents would be contained by the limitation on legal representation The further trade-off was that by holding the deposit to a low level access to the court was not limited for the impecunious petitioner with a genuine dispute Section 195 of the Commonwealth

Electoral Act 1902 provided that the deposit for security for costs should be 50 pounds That amount has not substantially changed in the intervening 90 years and now stands at $100 in section 356 of the Act

4315 Despite the concerns of the early legislators to protect elected parliamentarians from wealthy and vexatious petitioners modern day realities are that respondents will rarely appear without legal representation and more often than not will hire a Queens Counsel whose fee is guaranteed from party or other sympathetic resources It is also unlikely that the court would decline to consent to such representation if there were to be any objection from the petitioner This suggests that section 370 of the Act limiting legal representation no longer serves any practical purpose

4316 The provision does not appear in any way to either advantage or disadvantage the petitioner The impecunious petitioner by obtaining waivers on fees and by appearing without legal representation has ready access to the court The problem that Justice Gaudron has highlighted is that petitioners are encouraged by the apparent limitation on legal representation to bring disputes to court which might never have survived proper legal advice

4317 If section 370 were to be deleted from the legislation then the logical nexus between that provision and section 356 which sets a low $100 as the petitionerrsquos deposit for security for costs would fall away However there are other provisions relating to costs in the Act sections 360 (1)(ix) 360(1)(4) 372 and 373 for example which would need to be considered as part of any general review of the issue of costs and legal representation that the Committee might recommend

Attachment 4

Extract from AEC submission No 96 of 23 October 1996 on Federal Court

61 During the course of the proceedings it appeared as if evidentiary matters might have to be resolved in the petition by the examination of declaration envelopes and the calling of witnesses This could have involved up to 1594 individual investigations The High Court sitting as the Court of Disputed Returns has made it clear on at least one recent occasion (the Webster v Deahm petition in 1993) that it is not amendable to dealing with such a load and would if such evidentiary matters were to be pressed refer the petition to the relevant State Supreme Court This option is available to the Court under section 354 of the CEA

62 However it became clear during proceedings in this petition that there was a preference by the Bench for the questions of law to be resolved by the High Court with only questions of evidence being determined by the Supreme Court rather than the whole of the petition being heard and determined by the Supreme Court It was also the preferred position of the AEC that if a petition were to be split and any questions of evidence were to be remitted to the Supreme Court then the evidentiary determinations should be sent back to the High Court for final decision on the appropriate relief

63 It is the view of the AEC that the High Court and not a Supreme Court of a State should make final determinations on the proper outcome of challenges to a federal election for example whether or not a federal election should be voided The interpretation of section 354 of the CEA by the Chief Justice on 15 August 1996 means that it is not possible for the evidentiary and determinative matters in a petition to be ldquosplitrdquo between the High Court and a Supreme Court under the legislation as it currently standshellip

73 The Snowdon petition also gave rise to a procedural issue about the ldquosplittingrdquo of petitions and the remitting of questions of evidence from the High Court to inferior courts

The AEC recommends that section 354 of the CEA be amended to enable the High Court to remit aspects of a petition to a Supreme Court but so that the High Court retains final jurisdiction on relief

Attachment 5

McClure v AEC (1999) 73 ALJR 1086

See attached

9 Implications of the Ditchburn Decisions

91 Senate Group Ticket Voting

911 As discussed in part 71 above in this submission it is not unusual for independent Senate candidates to belatedly discover generally at the time of nomination that they are not entitled to appear on the ballot paper as a group ldquoabove the linerdquo and thereby take advantage of the ticket voting system for the Senate This may give rise to some protest at the ldquofairnessrdquo of sections 211 and 211A of the Electoral Act and can result in petitions to the Court of Disputed Returns after the election on the grounds that the law is both unconstitutional and ldquounfairrdquo to independent candidates

912 In Ditchburn v AEO Qld (unreported) Justice Hayne has confirmed the decisions in McClure v AEC (1999) 73 ALJR 1086 in Abbotto v AEC (1997) 71 ALJR 675 and in McKenzie v The Commonwealth (1984) 59 ALJR 190 that the Senate group ticket voting system is not unconstitutional and that it is not for the Court to decide whether the Senate group voting system is ldquofairrdquo or ldquounfairrdquo to independent candidates

913 In Ditchburn v AEO Qld Justice Hayne dealt with the further contention that the Senate group ticket voting is contrary to section 7 of the Constitution which requires that senators be ldquodirectly chosen by the peoplerdquo His Honour said that he did not accept the contention that sections 211 and 211A of the Electoral Act ldquoprescribe a method of electing Senators which resembles an electoral college and where Senators are indirectly chosen by the people of the Staterdquo

914 Full Preferential Voting

915 In Ditchburn v DRO Herbert (unreported) it was contended that full preferential voting is contrary to section 24 of the Constitution which requires that members be ldquodirectly chosen by the peoplerdquo and section 30 of the Constitution which requires that ldquoin the choosing of members each elector shall vote only oncerdquo

916 Justice Hayne did not accept that full preferential voting under section 240 of the Electoral Act is contrary to section 24 of the Constitution which requires that members be ldquodirectly chosen by the peoplerdquo In coming to this decision His Honour relied on the decision of the High Court in Langer v The Commonwealth (1996) 186 CLR 302 In Langer the High Court held that section 240 of the Electoral Act is a valid law within sections 31 and 51(xxxvi) of the Constitution and not inconsistent with the requirements of section 24 of the Constitution Justice Hayne noted that the decision in Langer was consistent with the decisions in Judd v McKeon (1926) 38 CLR 380 and Faderson v Bridger (1971) 126 CLR 217

917 Further Justice Hayne did not accept that full preferential voting is contrary to section 30 of the Constitution which requires that ldquoin the choosing of members each elector shall vote only oncerdquo In coming to this decision Justice Hayne relied on Attorney-General (Cth) Ex rel McKinlay v The Commonwealth (1975) 135 CLR 1 McGinty v Western Australia (1996) 186 CLR 140 Langer v The Commonwealth (1996) 186 CLR 302 and Soegemeier v Macklin (1985) 58 ALR 768

918 His Honour noted that prior to Federation plural voting on the basis of property qualifications was allowed in Tasmania Western Australia and Queensland It was clear from the Debates at the 1891 Convention in Sydney that the question of plural voting was well in the minds of the members of the Constitutional Conventions from which the terms of the Constitution emerged and hence the phrase ldquoin the choosing of members each elector shall vote only oncerdquo It is notable in this context that the Constitution that emerged from the Constitutional Conventions did not entrench either the secret ballot compulsory voting preferential voting or proportional voting

919 His Honour concluded that under the full preferential voting system each elector casts but one expression of his or her choice of member in one electoral Division The choice is expressed in a complex way but it remains a single expression of the will of that voter That is at federal elections with full preferential voting the voter votes only once All that the Constitution appears to proscribe is plural voting based on property qualifications as was permitted in colonial times

10 Summary of Outcomes in the 1998 Election Petitions

bull The Court of Disputed Returns has jurisdiction to hear election petitions disputing the constitutional qualifications of candidates

bull The United Kingdom is a ldquoforeign powerrdquo under the terms of section 44(i) of the Constitution

bull Ms Heather Hill a elected candidate for the Senate in Queensland was disqualified under section 44(i) of the Constitution as a British subject at the time of her nomination

bull The Senate group voting system is a valid law of the Parliament under the terms of the Constitution including sections 7 and 24 which require that senators and members be ldquodirectly chosen by the peoplerdquo

bull It is not for the Court to decide whether or not the Senate group voting system is fair or unfair to independent candidates

bull There is no provision for class actions in election petitions and in any case electors can only dispute the elections for which they were entitled to vote

bull The Court will apply the law as provided by the Parliament within the terms of the Constitution and there is nothing to suggest that Royal Assent was not properly given to the Electoral Act and its amending Acts

bull Section 240 of the Electoral Act which provides for full preferential voting is a valid law within the terms of the Constitution including sections 7 and 24 which require that members and senators be ldquodirectly chosen by the peoplerdquo and sections 8 and 30 which require that ldquoeach elector shall vote only oncerdquo

ATTACHMENTS

Attachment 1

Sue v Hill (S1791998 Gleeson CJ 19 March 1999 unreported)

See attached

Attachment 2

Sue v Hill (1999) 73 ALJR 1016

See attached

Attachment 3

Extract from AEC submission No124 of 15 November 1993 re costs

432 During the hearing on 1 October 1993 on the question of costs Justice Gaudron made a number of observations on the ease with which election petitions which may have no legal merit can be lodged with the Court of Disputed Returns under the current provisions of the Commonwealth Electoral Act 1918 For example on page 54 of the transcript Justice Gaudron said the following

The Act is by no means of model of clarity as to who can bring petitions it sets it up so that a person can come without the benefit of legal advice which might deflect it In fact it discourages positively prohibits legal representation without leave so that the Act is virtually inviting people to bring petitions which have not had the benefit of legal analysis

433 Her Honour then appeared to agree with the proposition of Mr Gageler for the Commonwealth that whilst the $100 security for costs required under section 356 of the Act in order to lodge a petition may have been a deterrent to vexatious or frivolous petitioners when it was first legislated in 1902 (when it was 50 pounds) it can hardly be regarded as a meaningful deterrent these days

434 In discussing with Mr Gageler the scheme of the Act which appears to encourage unimpeded access to the Court of Disputed Returns by any and all petitioners Justice Gaudron said at page 55 of the transcript

Virtually unimpeded access and as you tell me five out of six [of the petitions] have failed One well knows that some of the grounds that have been advanced in these petitions - and I put Mr Hudsons to one side - have been grounds that one would think would not have survived legal advice

435 In reference to section 370 of the Act which provides that no party to the petition shall except by consent of all parties or by leave of the Court be represented by counsel or solicitor [and] in no case shall more than one counsel or solicitor appear on behalf of any party Justice Gaudron went on to say

But very rarely do you have a provision such as this - you do in some Acts but not commonly - no legal representation except by leave So what you are doing is you are in fact encouraging people to come to the Court with arguments that do not necessarily have a basis in law

436 And finally on page 58 of the transcript Justice Gaudron said

I was hoping maybe that the legislature might see fit to do something with respect to the provisions as they stand It is by no means a model of clarity is it that part of the Act

437 These comments from the Bench are directed to petitions that ldquowould not have survived legal advicerdquo that is vexatious andor frivolous petitions and not to the Hudson petition in particular as is obvious from Justice Gaudronrsquos comment that the ease of access to the Court for petitioners of limited means such as Mr Hudson is ldquocommendablerdquo (see paragraph 427 above)

438 If any review of the provisions of the Act relating to costs and legal representation were to be undertaken it would need to be in the context of the following considerations

439 For the average petitioner it costs a total of $900 in set fees and charges to lodge a petition made up of the $100 deposit as security for costs under section 356 of the Commonwealth Electoral Act 1918 and the $300 filing fee and the $500 hearing fee under regulations 4(1) and 5(1) respectively of the High Court of Australia (Fees) Regulations If a petitioner can provide a health care card or a health benefit card or provide other reasons acceptable to the High Court Registry that indicate financial constraints then the High Court Regulations allow the $800 High Court fees to be waived There is no waiver under the Commonwealth Electoral Act 1918 for the $100 deposit as security for costs

4310 In addition to these set fees and the deposit under Order 68 rule 3 of the High Court Rules forthwith after filing a petition the petitioner must arrange for the petition to be published in the Commonwealth Gazette and the relevant State Gazette and in the case of an election for the House of Representatives the petitioner must publish a notice giving details of the petition in a newspaper circulating in the relevant electoral Division Further under Order 68 rule 5 of the Rules the petitioner must 28 days after the filing of the petition serve a copy of the petition upon every person whose election or return is disputed by the petition These requirements under the High Court Rules for publication and service can clearly add up to a considerable financial burden to the petitioner

4311 The Commission has no difficulty with the fees service and advertising requirements of the High Court Rules in so far as they apply to petitions disputing elections The Commission does however agree with Justice Gaudron that the provisions in the Commonwealth Electoral Act 1918 relating to costs and legal representation are dated and inconsistent

4312 The history of the introduction in 1902 to 1905 of the provisions of the Commonwealth Electoral Act 1918 relating to costs and legal representation in the Court of Disputed Returns will not be canvassed in detail in this Submission However it is worth noting that the two Houses of Parliament were divided at that time over whether to legislate for a non-judicial parliamentary Elections and Qualifications Committee or a Court of Disputed Returns with full judicial powers to settle election disputes The primary cause of concern was the high cost of legal fees for respondents required to defend their election before a court against wealthy and possibly vexatious petitioners

4313 In the outcome a Court of Disputed Returns was agreed upon as being more impartial in the settling of election disputes than a Parliamentary committee However as a trade-off a provision was inserted in the Act limiting legal representation in order to protect elected parliamentarians from the costs of vexatious challenges Section 370 of the Commonwealth Electoral Act 1918 which provides that except by consent of all parties or by leave of the Court no party shall be represented by counsel or solicitor was therefore inserted by section 57 of the Commonwealth Electoral Act 1905

4314 As a corollary the deposit to be paid by the petitioner as security for costs was held at a low level in the expectation that court costs for the respondents would be contained by the limitation on legal representation The further trade-off was that by holding the deposit to a low level access to the court was not limited for the impecunious petitioner with a genuine dispute Section 195 of the Commonwealth

Electoral Act 1902 provided that the deposit for security for costs should be 50 pounds That amount has not substantially changed in the intervening 90 years and now stands at $100 in section 356 of the Act

4315 Despite the concerns of the early legislators to protect elected parliamentarians from wealthy and vexatious petitioners modern day realities are that respondents will rarely appear without legal representation and more often than not will hire a Queens Counsel whose fee is guaranteed from party or other sympathetic resources It is also unlikely that the court would decline to consent to such representation if there were to be any objection from the petitioner This suggests that section 370 of the Act limiting legal representation no longer serves any practical purpose

4316 The provision does not appear in any way to either advantage or disadvantage the petitioner The impecunious petitioner by obtaining waivers on fees and by appearing without legal representation has ready access to the court The problem that Justice Gaudron has highlighted is that petitioners are encouraged by the apparent limitation on legal representation to bring disputes to court which might never have survived proper legal advice

4317 If section 370 were to be deleted from the legislation then the logical nexus between that provision and section 356 which sets a low $100 as the petitionerrsquos deposit for security for costs would fall away However there are other provisions relating to costs in the Act sections 360 (1)(ix) 360(1)(4) 372 and 373 for example which would need to be considered as part of any general review of the issue of costs and legal representation that the Committee might recommend

Attachment 4

Extract from AEC submission No 96 of 23 October 1996 on Federal Court

61 During the course of the proceedings it appeared as if evidentiary matters might have to be resolved in the petition by the examination of declaration envelopes and the calling of witnesses This could have involved up to 1594 individual investigations The High Court sitting as the Court of Disputed Returns has made it clear on at least one recent occasion (the Webster v Deahm petition in 1993) that it is not amendable to dealing with such a load and would if such evidentiary matters were to be pressed refer the petition to the relevant State Supreme Court This option is available to the Court under section 354 of the CEA

62 However it became clear during proceedings in this petition that there was a preference by the Bench for the questions of law to be resolved by the High Court with only questions of evidence being determined by the Supreme Court rather than the whole of the petition being heard and determined by the Supreme Court It was also the preferred position of the AEC that if a petition were to be split and any questions of evidence were to be remitted to the Supreme Court then the evidentiary determinations should be sent back to the High Court for final decision on the appropriate relief

63 It is the view of the AEC that the High Court and not a Supreme Court of a State should make final determinations on the proper outcome of challenges to a federal election for example whether or not a federal election should be voided The interpretation of section 354 of the CEA by the Chief Justice on 15 August 1996 means that it is not possible for the evidentiary and determinative matters in a petition to be ldquosplitrdquo between the High Court and a Supreme Court under the legislation as it currently standshellip

73 The Snowdon petition also gave rise to a procedural issue about the ldquosplittingrdquo of petitions and the remitting of questions of evidence from the High Court to inferior courts

The AEC recommends that section 354 of the CEA be amended to enable the High Court to remit aspects of a petition to a Supreme Court but so that the High Court retains final jurisdiction on relief

Attachment 5

McClure v AEC (1999) 73 ALJR 1086

See attached

917 Further Justice Hayne did not accept that full preferential voting is contrary to section 30 of the Constitution which requires that ldquoin the choosing of members each elector shall vote only oncerdquo In coming to this decision Justice Hayne relied on Attorney-General (Cth) Ex rel McKinlay v The Commonwealth (1975) 135 CLR 1 McGinty v Western Australia (1996) 186 CLR 140 Langer v The Commonwealth (1996) 186 CLR 302 and Soegemeier v Macklin (1985) 58 ALR 768

918 His Honour noted that prior to Federation plural voting on the basis of property qualifications was allowed in Tasmania Western Australia and Queensland It was clear from the Debates at the 1891 Convention in Sydney that the question of plural voting was well in the minds of the members of the Constitutional Conventions from which the terms of the Constitution emerged and hence the phrase ldquoin the choosing of members each elector shall vote only oncerdquo It is notable in this context that the Constitution that emerged from the Constitutional Conventions did not entrench either the secret ballot compulsory voting preferential voting or proportional voting

919 His Honour concluded that under the full preferential voting system each elector casts but one expression of his or her choice of member in one electoral Division The choice is expressed in a complex way but it remains a single expression of the will of that voter That is at federal elections with full preferential voting the voter votes only once All that the Constitution appears to proscribe is plural voting based on property qualifications as was permitted in colonial times

10 Summary of Outcomes in the 1998 Election Petitions

bull The Court of Disputed Returns has jurisdiction to hear election petitions disputing the constitutional qualifications of candidates

bull The United Kingdom is a ldquoforeign powerrdquo under the terms of section 44(i) of the Constitution

bull Ms Heather Hill a elected candidate for the Senate in Queensland was disqualified under section 44(i) of the Constitution as a British subject at the time of her nomination

bull The Senate group voting system is a valid law of the Parliament under the terms of the Constitution including sections 7 and 24 which require that senators and members be ldquodirectly chosen by the peoplerdquo

bull It is not for the Court to decide whether or not the Senate group voting system is fair or unfair to independent candidates

bull There is no provision for class actions in election petitions and in any case electors can only dispute the elections for which they were entitled to vote

bull The Court will apply the law as provided by the Parliament within the terms of the Constitution and there is nothing to suggest that Royal Assent was not properly given to the Electoral Act and its amending Acts

bull Section 240 of the Electoral Act which provides for full preferential voting is a valid law within the terms of the Constitution including sections 7 and 24 which require that members and senators be ldquodirectly chosen by the peoplerdquo and sections 8 and 30 which require that ldquoeach elector shall vote only oncerdquo

ATTACHMENTS

Attachment 1

Sue v Hill (S1791998 Gleeson CJ 19 March 1999 unreported)

See attached

Attachment 2

Sue v Hill (1999) 73 ALJR 1016

See attached

Attachment 3

Extract from AEC submission No124 of 15 November 1993 re costs

432 During the hearing on 1 October 1993 on the question of costs Justice Gaudron made a number of observations on the ease with which election petitions which may have no legal merit can be lodged with the Court of Disputed Returns under the current provisions of the Commonwealth Electoral Act 1918 For example on page 54 of the transcript Justice Gaudron said the following

The Act is by no means of model of clarity as to who can bring petitions it sets it up so that a person can come without the benefit of legal advice which might deflect it In fact it discourages positively prohibits legal representation without leave so that the Act is virtually inviting people to bring petitions which have not had the benefit of legal analysis

433 Her Honour then appeared to agree with the proposition of Mr Gageler for the Commonwealth that whilst the $100 security for costs required under section 356 of the Act in order to lodge a petition may have been a deterrent to vexatious or frivolous petitioners when it was first legislated in 1902 (when it was 50 pounds) it can hardly be regarded as a meaningful deterrent these days

434 In discussing with Mr Gageler the scheme of the Act which appears to encourage unimpeded access to the Court of Disputed Returns by any and all petitioners Justice Gaudron said at page 55 of the transcript

Virtually unimpeded access and as you tell me five out of six [of the petitions] have failed One well knows that some of the grounds that have been advanced in these petitions - and I put Mr Hudsons to one side - have been grounds that one would think would not have survived legal advice

435 In reference to section 370 of the Act which provides that no party to the petition shall except by consent of all parties or by leave of the Court be represented by counsel or solicitor [and] in no case shall more than one counsel or solicitor appear on behalf of any party Justice Gaudron went on to say

But very rarely do you have a provision such as this - you do in some Acts but not commonly - no legal representation except by leave So what you are doing is you are in fact encouraging people to come to the Court with arguments that do not necessarily have a basis in law

436 And finally on page 58 of the transcript Justice Gaudron said

I was hoping maybe that the legislature might see fit to do something with respect to the provisions as they stand It is by no means a model of clarity is it that part of the Act

437 These comments from the Bench are directed to petitions that ldquowould not have survived legal advicerdquo that is vexatious andor frivolous petitions and not to the Hudson petition in particular as is obvious from Justice Gaudronrsquos comment that the ease of access to the Court for petitioners of limited means such as Mr Hudson is ldquocommendablerdquo (see paragraph 427 above)

438 If any review of the provisions of the Act relating to costs and legal representation were to be undertaken it would need to be in the context of the following considerations

439 For the average petitioner it costs a total of $900 in set fees and charges to lodge a petition made up of the $100 deposit as security for costs under section 356 of the Commonwealth Electoral Act 1918 and the $300 filing fee and the $500 hearing fee under regulations 4(1) and 5(1) respectively of the High Court of Australia (Fees) Regulations If a petitioner can provide a health care card or a health benefit card or provide other reasons acceptable to the High Court Registry that indicate financial constraints then the High Court Regulations allow the $800 High Court fees to be waived There is no waiver under the Commonwealth Electoral Act 1918 for the $100 deposit as security for costs

4310 In addition to these set fees and the deposit under Order 68 rule 3 of the High Court Rules forthwith after filing a petition the petitioner must arrange for the petition to be published in the Commonwealth Gazette and the relevant State Gazette and in the case of an election for the House of Representatives the petitioner must publish a notice giving details of the petition in a newspaper circulating in the relevant electoral Division Further under Order 68 rule 5 of the Rules the petitioner must 28 days after the filing of the petition serve a copy of the petition upon every person whose election or return is disputed by the petition These requirements under the High Court Rules for publication and service can clearly add up to a considerable financial burden to the petitioner

4311 The Commission has no difficulty with the fees service and advertising requirements of the High Court Rules in so far as they apply to petitions disputing elections The Commission does however agree with Justice Gaudron that the provisions in the Commonwealth Electoral Act 1918 relating to costs and legal representation are dated and inconsistent

4312 The history of the introduction in 1902 to 1905 of the provisions of the Commonwealth Electoral Act 1918 relating to costs and legal representation in the Court of Disputed Returns will not be canvassed in detail in this Submission However it is worth noting that the two Houses of Parliament were divided at that time over whether to legislate for a non-judicial parliamentary Elections and Qualifications Committee or a Court of Disputed Returns with full judicial powers to settle election disputes The primary cause of concern was the high cost of legal fees for respondents required to defend their election before a court against wealthy and possibly vexatious petitioners

4313 In the outcome a Court of Disputed Returns was agreed upon as being more impartial in the settling of election disputes than a Parliamentary committee However as a trade-off a provision was inserted in the Act limiting legal representation in order to protect elected parliamentarians from the costs of vexatious challenges Section 370 of the Commonwealth Electoral Act 1918 which provides that except by consent of all parties or by leave of the Court no party shall be represented by counsel or solicitor was therefore inserted by section 57 of the Commonwealth Electoral Act 1905

4314 As a corollary the deposit to be paid by the petitioner as security for costs was held at a low level in the expectation that court costs for the respondents would be contained by the limitation on legal representation The further trade-off was that by holding the deposit to a low level access to the court was not limited for the impecunious petitioner with a genuine dispute Section 195 of the Commonwealth

Electoral Act 1902 provided that the deposit for security for costs should be 50 pounds That amount has not substantially changed in the intervening 90 years and now stands at $100 in section 356 of the Act

4315 Despite the concerns of the early legislators to protect elected parliamentarians from wealthy and vexatious petitioners modern day realities are that respondents will rarely appear without legal representation and more often than not will hire a Queens Counsel whose fee is guaranteed from party or other sympathetic resources It is also unlikely that the court would decline to consent to such representation if there were to be any objection from the petitioner This suggests that section 370 of the Act limiting legal representation no longer serves any practical purpose

4316 The provision does not appear in any way to either advantage or disadvantage the petitioner The impecunious petitioner by obtaining waivers on fees and by appearing without legal representation has ready access to the court The problem that Justice Gaudron has highlighted is that petitioners are encouraged by the apparent limitation on legal representation to bring disputes to court which might never have survived proper legal advice

4317 If section 370 were to be deleted from the legislation then the logical nexus between that provision and section 356 which sets a low $100 as the petitionerrsquos deposit for security for costs would fall away However there are other provisions relating to costs in the Act sections 360 (1)(ix) 360(1)(4) 372 and 373 for example which would need to be considered as part of any general review of the issue of costs and legal representation that the Committee might recommend

Attachment 4

Extract from AEC submission No 96 of 23 October 1996 on Federal Court

61 During the course of the proceedings it appeared as if evidentiary matters might have to be resolved in the petition by the examination of declaration envelopes and the calling of witnesses This could have involved up to 1594 individual investigations The High Court sitting as the Court of Disputed Returns has made it clear on at least one recent occasion (the Webster v Deahm petition in 1993) that it is not amendable to dealing with such a load and would if such evidentiary matters were to be pressed refer the petition to the relevant State Supreme Court This option is available to the Court under section 354 of the CEA

62 However it became clear during proceedings in this petition that there was a preference by the Bench for the questions of law to be resolved by the High Court with only questions of evidence being determined by the Supreme Court rather than the whole of the petition being heard and determined by the Supreme Court It was also the preferred position of the AEC that if a petition were to be split and any questions of evidence were to be remitted to the Supreme Court then the evidentiary determinations should be sent back to the High Court for final decision on the appropriate relief

63 It is the view of the AEC that the High Court and not a Supreme Court of a State should make final determinations on the proper outcome of challenges to a federal election for example whether or not a federal election should be voided The interpretation of section 354 of the CEA by the Chief Justice on 15 August 1996 means that it is not possible for the evidentiary and determinative matters in a petition to be ldquosplitrdquo between the High Court and a Supreme Court under the legislation as it currently standshellip

73 The Snowdon petition also gave rise to a procedural issue about the ldquosplittingrdquo of petitions and the remitting of questions of evidence from the High Court to inferior courts

The AEC recommends that section 354 of the CEA be amended to enable the High Court to remit aspects of a petition to a Supreme Court but so that the High Court retains final jurisdiction on relief

Attachment 5

McClure v AEC (1999) 73 ALJR 1086

See attached

10 Summary of Outcomes in the 1998 Election Petitions

bull The Court of Disputed Returns has jurisdiction to hear election petitions disputing the constitutional qualifications of candidates

bull The United Kingdom is a ldquoforeign powerrdquo under the terms of section 44(i) of the Constitution

bull Ms Heather Hill a elected candidate for the Senate in Queensland was disqualified under section 44(i) of the Constitution as a British subject at the time of her nomination

bull The Senate group voting system is a valid law of the Parliament under the terms of the Constitution including sections 7 and 24 which require that senators and members be ldquodirectly chosen by the peoplerdquo

bull It is not for the Court to decide whether or not the Senate group voting system is fair or unfair to independent candidates

bull There is no provision for class actions in election petitions and in any case electors can only dispute the elections for which they were entitled to vote

bull The Court will apply the law as provided by the Parliament within the terms of the Constitution and there is nothing to suggest that Royal Assent was not properly given to the Electoral Act and its amending Acts

bull Section 240 of the Electoral Act which provides for full preferential voting is a valid law within the terms of the Constitution including sections 7 and 24 which require that members and senators be ldquodirectly chosen by the peoplerdquo and sections 8 and 30 which require that ldquoeach elector shall vote only oncerdquo

ATTACHMENTS

Attachment 1

Sue v Hill (S1791998 Gleeson CJ 19 March 1999 unreported)

See attached

Attachment 2

Sue v Hill (1999) 73 ALJR 1016

See attached

Attachment 3

Extract from AEC submission No124 of 15 November 1993 re costs

432 During the hearing on 1 October 1993 on the question of costs Justice Gaudron made a number of observations on the ease with which election petitions which may have no legal merit can be lodged with the Court of Disputed Returns under the current provisions of the Commonwealth Electoral Act 1918 For example on page 54 of the transcript Justice Gaudron said the following

The Act is by no means of model of clarity as to who can bring petitions it sets it up so that a person can come without the benefit of legal advice which might deflect it In fact it discourages positively prohibits legal representation without leave so that the Act is virtually inviting people to bring petitions which have not had the benefit of legal analysis

433 Her Honour then appeared to agree with the proposition of Mr Gageler for the Commonwealth that whilst the $100 security for costs required under section 356 of the Act in order to lodge a petition may have been a deterrent to vexatious or frivolous petitioners when it was first legislated in 1902 (when it was 50 pounds) it can hardly be regarded as a meaningful deterrent these days

434 In discussing with Mr Gageler the scheme of the Act which appears to encourage unimpeded access to the Court of Disputed Returns by any and all petitioners Justice Gaudron said at page 55 of the transcript

Virtually unimpeded access and as you tell me five out of six [of the petitions] have failed One well knows that some of the grounds that have been advanced in these petitions - and I put Mr Hudsons to one side - have been grounds that one would think would not have survived legal advice

435 In reference to section 370 of the Act which provides that no party to the petition shall except by consent of all parties or by leave of the Court be represented by counsel or solicitor [and] in no case shall more than one counsel or solicitor appear on behalf of any party Justice Gaudron went on to say

But very rarely do you have a provision such as this - you do in some Acts but not commonly - no legal representation except by leave So what you are doing is you are in fact encouraging people to come to the Court with arguments that do not necessarily have a basis in law

436 And finally on page 58 of the transcript Justice Gaudron said

I was hoping maybe that the legislature might see fit to do something with respect to the provisions as they stand It is by no means a model of clarity is it that part of the Act

437 These comments from the Bench are directed to petitions that ldquowould not have survived legal advicerdquo that is vexatious andor frivolous petitions and not to the Hudson petition in particular as is obvious from Justice Gaudronrsquos comment that the ease of access to the Court for petitioners of limited means such as Mr Hudson is ldquocommendablerdquo (see paragraph 427 above)

438 If any review of the provisions of the Act relating to costs and legal representation were to be undertaken it would need to be in the context of the following considerations

439 For the average petitioner it costs a total of $900 in set fees and charges to lodge a petition made up of the $100 deposit as security for costs under section 356 of the Commonwealth Electoral Act 1918 and the $300 filing fee and the $500 hearing fee under regulations 4(1) and 5(1) respectively of the High Court of Australia (Fees) Regulations If a petitioner can provide a health care card or a health benefit card or provide other reasons acceptable to the High Court Registry that indicate financial constraints then the High Court Regulations allow the $800 High Court fees to be waived There is no waiver under the Commonwealth Electoral Act 1918 for the $100 deposit as security for costs

4310 In addition to these set fees and the deposit under Order 68 rule 3 of the High Court Rules forthwith after filing a petition the petitioner must arrange for the petition to be published in the Commonwealth Gazette and the relevant State Gazette and in the case of an election for the House of Representatives the petitioner must publish a notice giving details of the petition in a newspaper circulating in the relevant electoral Division Further under Order 68 rule 5 of the Rules the petitioner must 28 days after the filing of the petition serve a copy of the petition upon every person whose election or return is disputed by the petition These requirements under the High Court Rules for publication and service can clearly add up to a considerable financial burden to the petitioner

4311 The Commission has no difficulty with the fees service and advertising requirements of the High Court Rules in so far as they apply to petitions disputing elections The Commission does however agree with Justice Gaudron that the provisions in the Commonwealth Electoral Act 1918 relating to costs and legal representation are dated and inconsistent

4312 The history of the introduction in 1902 to 1905 of the provisions of the Commonwealth Electoral Act 1918 relating to costs and legal representation in the Court of Disputed Returns will not be canvassed in detail in this Submission However it is worth noting that the two Houses of Parliament were divided at that time over whether to legislate for a non-judicial parliamentary Elections and Qualifications Committee or a Court of Disputed Returns with full judicial powers to settle election disputes The primary cause of concern was the high cost of legal fees for respondents required to defend their election before a court against wealthy and possibly vexatious petitioners

4313 In the outcome a Court of Disputed Returns was agreed upon as being more impartial in the settling of election disputes than a Parliamentary committee However as a trade-off a provision was inserted in the Act limiting legal representation in order to protect elected parliamentarians from the costs of vexatious challenges Section 370 of the Commonwealth Electoral Act 1918 which provides that except by consent of all parties or by leave of the Court no party shall be represented by counsel or solicitor was therefore inserted by section 57 of the Commonwealth Electoral Act 1905

4314 As a corollary the deposit to be paid by the petitioner as security for costs was held at a low level in the expectation that court costs for the respondents would be contained by the limitation on legal representation The further trade-off was that by holding the deposit to a low level access to the court was not limited for the impecunious petitioner with a genuine dispute Section 195 of the Commonwealth

Electoral Act 1902 provided that the deposit for security for costs should be 50 pounds That amount has not substantially changed in the intervening 90 years and now stands at $100 in section 356 of the Act

4315 Despite the concerns of the early legislators to protect elected parliamentarians from wealthy and vexatious petitioners modern day realities are that respondents will rarely appear without legal representation and more often than not will hire a Queens Counsel whose fee is guaranteed from party or other sympathetic resources It is also unlikely that the court would decline to consent to such representation if there were to be any objection from the petitioner This suggests that section 370 of the Act limiting legal representation no longer serves any practical purpose

4316 The provision does not appear in any way to either advantage or disadvantage the petitioner The impecunious petitioner by obtaining waivers on fees and by appearing without legal representation has ready access to the court The problem that Justice Gaudron has highlighted is that petitioners are encouraged by the apparent limitation on legal representation to bring disputes to court which might never have survived proper legal advice

4317 If section 370 were to be deleted from the legislation then the logical nexus between that provision and section 356 which sets a low $100 as the petitionerrsquos deposit for security for costs would fall away However there are other provisions relating to costs in the Act sections 360 (1)(ix) 360(1)(4) 372 and 373 for example which would need to be considered as part of any general review of the issue of costs and legal representation that the Committee might recommend

Attachment 4

Extract from AEC submission No 96 of 23 October 1996 on Federal Court

61 During the course of the proceedings it appeared as if evidentiary matters might have to be resolved in the petition by the examination of declaration envelopes and the calling of witnesses This could have involved up to 1594 individual investigations The High Court sitting as the Court of Disputed Returns has made it clear on at least one recent occasion (the Webster v Deahm petition in 1993) that it is not amendable to dealing with such a load and would if such evidentiary matters were to be pressed refer the petition to the relevant State Supreme Court This option is available to the Court under section 354 of the CEA

62 However it became clear during proceedings in this petition that there was a preference by the Bench for the questions of law to be resolved by the High Court with only questions of evidence being determined by the Supreme Court rather than the whole of the petition being heard and determined by the Supreme Court It was also the preferred position of the AEC that if a petition were to be split and any questions of evidence were to be remitted to the Supreme Court then the evidentiary determinations should be sent back to the High Court for final decision on the appropriate relief

63 It is the view of the AEC that the High Court and not a Supreme Court of a State should make final determinations on the proper outcome of challenges to a federal election for example whether or not a federal election should be voided The interpretation of section 354 of the CEA by the Chief Justice on 15 August 1996 means that it is not possible for the evidentiary and determinative matters in a petition to be ldquosplitrdquo between the High Court and a Supreme Court under the legislation as it currently standshellip

73 The Snowdon petition also gave rise to a procedural issue about the ldquosplittingrdquo of petitions and the remitting of questions of evidence from the High Court to inferior courts

The AEC recommends that section 354 of the CEA be amended to enable the High Court to remit aspects of a petition to a Supreme Court but so that the High Court retains final jurisdiction on relief

Attachment 5

McClure v AEC (1999) 73 ALJR 1086

See attached

ATTACHMENTS

Attachment 1

Sue v Hill (S1791998 Gleeson CJ 19 March 1999 unreported)

See attached

Attachment 2

Sue v Hill (1999) 73 ALJR 1016

See attached

Attachment 3

Extract from AEC submission No124 of 15 November 1993 re costs

432 During the hearing on 1 October 1993 on the question of costs Justice Gaudron made a number of observations on the ease with which election petitions which may have no legal merit can be lodged with the Court of Disputed Returns under the current provisions of the Commonwealth Electoral Act 1918 For example on page 54 of the transcript Justice Gaudron said the following

The Act is by no means of model of clarity as to who can bring petitions it sets it up so that a person can come without the benefit of legal advice which might deflect it In fact it discourages positively prohibits legal representation without leave so that the Act is virtually inviting people to bring petitions which have not had the benefit of legal analysis

433 Her Honour then appeared to agree with the proposition of Mr Gageler for the Commonwealth that whilst the $100 security for costs required under section 356 of the Act in order to lodge a petition may have been a deterrent to vexatious or frivolous petitioners when it was first legislated in 1902 (when it was 50 pounds) it can hardly be regarded as a meaningful deterrent these days

434 In discussing with Mr Gageler the scheme of the Act which appears to encourage unimpeded access to the Court of Disputed Returns by any and all petitioners Justice Gaudron said at page 55 of the transcript

Virtually unimpeded access and as you tell me five out of six [of the petitions] have failed One well knows that some of the grounds that have been advanced in these petitions - and I put Mr Hudsons to one side - have been grounds that one would think would not have survived legal advice

435 In reference to section 370 of the Act which provides that no party to the petition shall except by consent of all parties or by leave of the Court be represented by counsel or solicitor [and] in no case shall more than one counsel or solicitor appear on behalf of any party Justice Gaudron went on to say

But very rarely do you have a provision such as this - you do in some Acts but not commonly - no legal representation except by leave So what you are doing is you are in fact encouraging people to come to the Court with arguments that do not necessarily have a basis in law

436 And finally on page 58 of the transcript Justice Gaudron said

I was hoping maybe that the legislature might see fit to do something with respect to the provisions as they stand It is by no means a model of clarity is it that part of the Act

437 These comments from the Bench are directed to petitions that ldquowould not have survived legal advicerdquo that is vexatious andor frivolous petitions and not to the Hudson petition in particular as is obvious from Justice Gaudronrsquos comment that the ease of access to the Court for petitioners of limited means such as Mr Hudson is ldquocommendablerdquo (see paragraph 427 above)

438 If any review of the provisions of the Act relating to costs and legal representation were to be undertaken it would need to be in the context of the following considerations

439 For the average petitioner it costs a total of $900 in set fees and charges to lodge a petition made up of the $100 deposit as security for costs under section 356 of the Commonwealth Electoral Act 1918 and the $300 filing fee and the $500 hearing fee under regulations 4(1) and 5(1) respectively of the High Court of Australia (Fees) Regulations If a petitioner can provide a health care card or a health benefit card or provide other reasons acceptable to the High Court Registry that indicate financial constraints then the High Court Regulations allow the $800 High Court fees to be waived There is no waiver under the Commonwealth Electoral Act 1918 for the $100 deposit as security for costs

4310 In addition to these set fees and the deposit under Order 68 rule 3 of the High Court Rules forthwith after filing a petition the petitioner must arrange for the petition to be published in the Commonwealth Gazette and the relevant State Gazette and in the case of an election for the House of Representatives the petitioner must publish a notice giving details of the petition in a newspaper circulating in the relevant electoral Division Further under Order 68 rule 5 of the Rules the petitioner must 28 days after the filing of the petition serve a copy of the petition upon every person whose election or return is disputed by the petition These requirements under the High Court Rules for publication and service can clearly add up to a considerable financial burden to the petitioner

4311 The Commission has no difficulty with the fees service and advertising requirements of the High Court Rules in so far as they apply to petitions disputing elections The Commission does however agree with Justice Gaudron that the provisions in the Commonwealth Electoral Act 1918 relating to costs and legal representation are dated and inconsistent

4312 The history of the introduction in 1902 to 1905 of the provisions of the Commonwealth Electoral Act 1918 relating to costs and legal representation in the Court of Disputed Returns will not be canvassed in detail in this Submission However it is worth noting that the two Houses of Parliament were divided at that time over whether to legislate for a non-judicial parliamentary Elections and Qualifications Committee or a Court of Disputed Returns with full judicial powers to settle election disputes The primary cause of concern was the high cost of legal fees for respondents required to defend their election before a court against wealthy and possibly vexatious petitioners

4313 In the outcome a Court of Disputed Returns was agreed upon as being more impartial in the settling of election disputes than a Parliamentary committee However as a trade-off a provision was inserted in the Act limiting legal representation in order to protect elected parliamentarians from the costs of vexatious challenges Section 370 of the Commonwealth Electoral Act 1918 which provides that except by consent of all parties or by leave of the Court no party shall be represented by counsel or solicitor was therefore inserted by section 57 of the Commonwealth Electoral Act 1905

4314 As a corollary the deposit to be paid by the petitioner as security for costs was held at a low level in the expectation that court costs for the respondents would be contained by the limitation on legal representation The further trade-off was that by holding the deposit to a low level access to the court was not limited for the impecunious petitioner with a genuine dispute Section 195 of the Commonwealth

Electoral Act 1902 provided that the deposit for security for costs should be 50 pounds That amount has not substantially changed in the intervening 90 years and now stands at $100 in section 356 of the Act

4315 Despite the concerns of the early legislators to protect elected parliamentarians from wealthy and vexatious petitioners modern day realities are that respondents will rarely appear without legal representation and more often than not will hire a Queens Counsel whose fee is guaranteed from party or other sympathetic resources It is also unlikely that the court would decline to consent to such representation if there were to be any objection from the petitioner This suggests that section 370 of the Act limiting legal representation no longer serves any practical purpose

4316 The provision does not appear in any way to either advantage or disadvantage the petitioner The impecunious petitioner by obtaining waivers on fees and by appearing without legal representation has ready access to the court The problem that Justice Gaudron has highlighted is that petitioners are encouraged by the apparent limitation on legal representation to bring disputes to court which might never have survived proper legal advice

4317 If section 370 were to be deleted from the legislation then the logical nexus between that provision and section 356 which sets a low $100 as the petitionerrsquos deposit for security for costs would fall away However there are other provisions relating to costs in the Act sections 360 (1)(ix) 360(1)(4) 372 and 373 for example which would need to be considered as part of any general review of the issue of costs and legal representation that the Committee might recommend

Attachment 4

Extract from AEC submission No 96 of 23 October 1996 on Federal Court

61 During the course of the proceedings it appeared as if evidentiary matters might have to be resolved in the petition by the examination of declaration envelopes and the calling of witnesses This could have involved up to 1594 individual investigations The High Court sitting as the Court of Disputed Returns has made it clear on at least one recent occasion (the Webster v Deahm petition in 1993) that it is not amendable to dealing with such a load and would if such evidentiary matters were to be pressed refer the petition to the relevant State Supreme Court This option is available to the Court under section 354 of the CEA

62 However it became clear during proceedings in this petition that there was a preference by the Bench for the questions of law to be resolved by the High Court with only questions of evidence being determined by the Supreme Court rather than the whole of the petition being heard and determined by the Supreme Court It was also the preferred position of the AEC that if a petition were to be split and any questions of evidence were to be remitted to the Supreme Court then the evidentiary determinations should be sent back to the High Court for final decision on the appropriate relief

63 It is the view of the AEC that the High Court and not a Supreme Court of a State should make final determinations on the proper outcome of challenges to a federal election for example whether or not a federal election should be voided The interpretation of section 354 of the CEA by the Chief Justice on 15 August 1996 means that it is not possible for the evidentiary and determinative matters in a petition to be ldquosplitrdquo between the High Court and a Supreme Court under the legislation as it currently standshellip

73 The Snowdon petition also gave rise to a procedural issue about the ldquosplittingrdquo of petitions and the remitting of questions of evidence from the High Court to inferior courts

The AEC recommends that section 354 of the CEA be amended to enable the High Court to remit aspects of a petition to a Supreme Court but so that the High Court retains final jurisdiction on relief

Attachment 5

McClure v AEC (1999) 73 ALJR 1086

See attached

Attachment 1

Sue v Hill (S1791998 Gleeson CJ 19 March 1999 unreported)

See attached

Attachment 2

Sue v Hill (1999) 73 ALJR 1016

See attached

Attachment 3

Extract from AEC submission No124 of 15 November 1993 re costs

432 During the hearing on 1 October 1993 on the question of costs Justice Gaudron made a number of observations on the ease with which election petitions which may have no legal merit can be lodged with the Court of Disputed Returns under the current provisions of the Commonwealth Electoral Act 1918 For example on page 54 of the transcript Justice Gaudron said the following

The Act is by no means of model of clarity as to who can bring petitions it sets it up so that a person can come without the benefit of legal advice which might deflect it In fact it discourages positively prohibits legal representation without leave so that the Act is virtually inviting people to bring petitions which have not had the benefit of legal analysis

433 Her Honour then appeared to agree with the proposition of Mr Gageler for the Commonwealth that whilst the $100 security for costs required under section 356 of the Act in order to lodge a petition may have been a deterrent to vexatious or frivolous petitioners when it was first legislated in 1902 (when it was 50 pounds) it can hardly be regarded as a meaningful deterrent these days

434 In discussing with Mr Gageler the scheme of the Act which appears to encourage unimpeded access to the Court of Disputed Returns by any and all petitioners Justice Gaudron said at page 55 of the transcript

Virtually unimpeded access and as you tell me five out of six [of the petitions] have failed One well knows that some of the grounds that have been advanced in these petitions - and I put Mr Hudsons to one side - have been grounds that one would think would not have survived legal advice

435 In reference to section 370 of the Act which provides that no party to the petition shall except by consent of all parties or by leave of the Court be represented by counsel or solicitor [and] in no case shall more than one counsel or solicitor appear on behalf of any party Justice Gaudron went on to say

But very rarely do you have a provision such as this - you do in some Acts but not commonly - no legal representation except by leave So what you are doing is you are in fact encouraging people to come to the Court with arguments that do not necessarily have a basis in law

436 And finally on page 58 of the transcript Justice Gaudron said

I was hoping maybe that the legislature might see fit to do something with respect to the provisions as they stand It is by no means a model of clarity is it that part of the Act

437 These comments from the Bench are directed to petitions that ldquowould not have survived legal advicerdquo that is vexatious andor frivolous petitions and not to the Hudson petition in particular as is obvious from Justice Gaudronrsquos comment that the ease of access to the Court for petitioners of limited means such as Mr Hudson is ldquocommendablerdquo (see paragraph 427 above)

438 If any review of the provisions of the Act relating to costs and legal representation were to be undertaken it would need to be in the context of the following considerations

439 For the average petitioner it costs a total of $900 in set fees and charges to lodge a petition made up of the $100 deposit as security for costs under section 356 of the Commonwealth Electoral Act 1918 and the $300 filing fee and the $500 hearing fee under regulations 4(1) and 5(1) respectively of the High Court of Australia (Fees) Regulations If a petitioner can provide a health care card or a health benefit card or provide other reasons acceptable to the High Court Registry that indicate financial constraints then the High Court Regulations allow the $800 High Court fees to be waived There is no waiver under the Commonwealth Electoral Act 1918 for the $100 deposit as security for costs

4310 In addition to these set fees and the deposit under Order 68 rule 3 of the High Court Rules forthwith after filing a petition the petitioner must arrange for the petition to be published in the Commonwealth Gazette and the relevant State Gazette and in the case of an election for the House of Representatives the petitioner must publish a notice giving details of the petition in a newspaper circulating in the relevant electoral Division Further under Order 68 rule 5 of the Rules the petitioner must 28 days after the filing of the petition serve a copy of the petition upon every person whose election or return is disputed by the petition These requirements under the High Court Rules for publication and service can clearly add up to a considerable financial burden to the petitioner

4311 The Commission has no difficulty with the fees service and advertising requirements of the High Court Rules in so far as they apply to petitions disputing elections The Commission does however agree with Justice Gaudron that the provisions in the Commonwealth Electoral Act 1918 relating to costs and legal representation are dated and inconsistent

4312 The history of the introduction in 1902 to 1905 of the provisions of the Commonwealth Electoral Act 1918 relating to costs and legal representation in the Court of Disputed Returns will not be canvassed in detail in this Submission However it is worth noting that the two Houses of Parliament were divided at that time over whether to legislate for a non-judicial parliamentary Elections and Qualifications Committee or a Court of Disputed Returns with full judicial powers to settle election disputes The primary cause of concern was the high cost of legal fees for respondents required to defend their election before a court against wealthy and possibly vexatious petitioners

4313 In the outcome a Court of Disputed Returns was agreed upon as being more impartial in the settling of election disputes than a Parliamentary committee However as a trade-off a provision was inserted in the Act limiting legal representation in order to protect elected parliamentarians from the costs of vexatious challenges Section 370 of the Commonwealth Electoral Act 1918 which provides that except by consent of all parties or by leave of the Court no party shall be represented by counsel or solicitor was therefore inserted by section 57 of the Commonwealth Electoral Act 1905

4314 As a corollary the deposit to be paid by the petitioner as security for costs was held at a low level in the expectation that court costs for the respondents would be contained by the limitation on legal representation The further trade-off was that by holding the deposit to a low level access to the court was not limited for the impecunious petitioner with a genuine dispute Section 195 of the Commonwealth

Electoral Act 1902 provided that the deposit for security for costs should be 50 pounds That amount has not substantially changed in the intervening 90 years and now stands at $100 in section 356 of the Act

4315 Despite the concerns of the early legislators to protect elected parliamentarians from wealthy and vexatious petitioners modern day realities are that respondents will rarely appear without legal representation and more often than not will hire a Queens Counsel whose fee is guaranteed from party or other sympathetic resources It is also unlikely that the court would decline to consent to such representation if there were to be any objection from the petitioner This suggests that section 370 of the Act limiting legal representation no longer serves any practical purpose

4316 The provision does not appear in any way to either advantage or disadvantage the petitioner The impecunious petitioner by obtaining waivers on fees and by appearing without legal representation has ready access to the court The problem that Justice Gaudron has highlighted is that petitioners are encouraged by the apparent limitation on legal representation to bring disputes to court which might never have survived proper legal advice

4317 If section 370 were to be deleted from the legislation then the logical nexus between that provision and section 356 which sets a low $100 as the petitionerrsquos deposit for security for costs would fall away However there are other provisions relating to costs in the Act sections 360 (1)(ix) 360(1)(4) 372 and 373 for example which would need to be considered as part of any general review of the issue of costs and legal representation that the Committee might recommend

Attachment 4

Extract from AEC submission No 96 of 23 October 1996 on Federal Court

61 During the course of the proceedings it appeared as if evidentiary matters might have to be resolved in the petition by the examination of declaration envelopes and the calling of witnesses This could have involved up to 1594 individual investigations The High Court sitting as the Court of Disputed Returns has made it clear on at least one recent occasion (the Webster v Deahm petition in 1993) that it is not amendable to dealing with such a load and would if such evidentiary matters were to be pressed refer the petition to the relevant State Supreme Court This option is available to the Court under section 354 of the CEA

62 However it became clear during proceedings in this petition that there was a preference by the Bench for the questions of law to be resolved by the High Court with only questions of evidence being determined by the Supreme Court rather than the whole of the petition being heard and determined by the Supreme Court It was also the preferred position of the AEC that if a petition were to be split and any questions of evidence were to be remitted to the Supreme Court then the evidentiary determinations should be sent back to the High Court for final decision on the appropriate relief

63 It is the view of the AEC that the High Court and not a Supreme Court of a State should make final determinations on the proper outcome of challenges to a federal election for example whether or not a federal election should be voided The interpretation of section 354 of the CEA by the Chief Justice on 15 August 1996 means that it is not possible for the evidentiary and determinative matters in a petition to be ldquosplitrdquo between the High Court and a Supreme Court under the legislation as it currently standshellip

73 The Snowdon petition also gave rise to a procedural issue about the ldquosplittingrdquo of petitions and the remitting of questions of evidence from the High Court to inferior courts

The AEC recommends that section 354 of the CEA be amended to enable the High Court to remit aspects of a petition to a Supreme Court but so that the High Court retains final jurisdiction on relief

Attachment 5

McClure v AEC (1999) 73 ALJR 1086

See attached

Attachment 2

Sue v Hill (1999) 73 ALJR 1016

See attached

Attachment 3

Extract from AEC submission No124 of 15 November 1993 re costs

432 During the hearing on 1 October 1993 on the question of costs Justice Gaudron made a number of observations on the ease with which election petitions which may have no legal merit can be lodged with the Court of Disputed Returns under the current provisions of the Commonwealth Electoral Act 1918 For example on page 54 of the transcript Justice Gaudron said the following

The Act is by no means of model of clarity as to who can bring petitions it sets it up so that a person can come without the benefit of legal advice which might deflect it In fact it discourages positively prohibits legal representation without leave so that the Act is virtually inviting people to bring petitions which have not had the benefit of legal analysis

433 Her Honour then appeared to agree with the proposition of Mr Gageler for the Commonwealth that whilst the $100 security for costs required under section 356 of the Act in order to lodge a petition may have been a deterrent to vexatious or frivolous petitioners when it was first legislated in 1902 (when it was 50 pounds) it can hardly be regarded as a meaningful deterrent these days

434 In discussing with Mr Gageler the scheme of the Act which appears to encourage unimpeded access to the Court of Disputed Returns by any and all petitioners Justice Gaudron said at page 55 of the transcript

Virtually unimpeded access and as you tell me five out of six [of the petitions] have failed One well knows that some of the grounds that have been advanced in these petitions - and I put Mr Hudsons to one side - have been grounds that one would think would not have survived legal advice

435 In reference to section 370 of the Act which provides that no party to the petition shall except by consent of all parties or by leave of the Court be represented by counsel or solicitor [and] in no case shall more than one counsel or solicitor appear on behalf of any party Justice Gaudron went on to say

But very rarely do you have a provision such as this - you do in some Acts but not commonly - no legal representation except by leave So what you are doing is you are in fact encouraging people to come to the Court with arguments that do not necessarily have a basis in law

436 And finally on page 58 of the transcript Justice Gaudron said

I was hoping maybe that the legislature might see fit to do something with respect to the provisions as they stand It is by no means a model of clarity is it that part of the Act

437 These comments from the Bench are directed to petitions that ldquowould not have survived legal advicerdquo that is vexatious andor frivolous petitions and not to the Hudson petition in particular as is obvious from Justice Gaudronrsquos comment that the ease of access to the Court for petitioners of limited means such as Mr Hudson is ldquocommendablerdquo (see paragraph 427 above)

438 If any review of the provisions of the Act relating to costs and legal representation were to be undertaken it would need to be in the context of the following considerations

439 For the average petitioner it costs a total of $900 in set fees and charges to lodge a petition made up of the $100 deposit as security for costs under section 356 of the Commonwealth Electoral Act 1918 and the $300 filing fee and the $500 hearing fee under regulations 4(1) and 5(1) respectively of the High Court of Australia (Fees) Regulations If a petitioner can provide a health care card or a health benefit card or provide other reasons acceptable to the High Court Registry that indicate financial constraints then the High Court Regulations allow the $800 High Court fees to be waived There is no waiver under the Commonwealth Electoral Act 1918 for the $100 deposit as security for costs

4310 In addition to these set fees and the deposit under Order 68 rule 3 of the High Court Rules forthwith after filing a petition the petitioner must arrange for the petition to be published in the Commonwealth Gazette and the relevant State Gazette and in the case of an election for the House of Representatives the petitioner must publish a notice giving details of the petition in a newspaper circulating in the relevant electoral Division Further under Order 68 rule 5 of the Rules the petitioner must 28 days after the filing of the petition serve a copy of the petition upon every person whose election or return is disputed by the petition These requirements under the High Court Rules for publication and service can clearly add up to a considerable financial burden to the petitioner

4311 The Commission has no difficulty with the fees service and advertising requirements of the High Court Rules in so far as they apply to petitions disputing elections The Commission does however agree with Justice Gaudron that the provisions in the Commonwealth Electoral Act 1918 relating to costs and legal representation are dated and inconsistent

4312 The history of the introduction in 1902 to 1905 of the provisions of the Commonwealth Electoral Act 1918 relating to costs and legal representation in the Court of Disputed Returns will not be canvassed in detail in this Submission However it is worth noting that the two Houses of Parliament were divided at that time over whether to legislate for a non-judicial parliamentary Elections and Qualifications Committee or a Court of Disputed Returns with full judicial powers to settle election disputes The primary cause of concern was the high cost of legal fees for respondents required to defend their election before a court against wealthy and possibly vexatious petitioners

4313 In the outcome a Court of Disputed Returns was agreed upon as being more impartial in the settling of election disputes than a Parliamentary committee However as a trade-off a provision was inserted in the Act limiting legal representation in order to protect elected parliamentarians from the costs of vexatious challenges Section 370 of the Commonwealth Electoral Act 1918 which provides that except by consent of all parties or by leave of the Court no party shall be represented by counsel or solicitor was therefore inserted by section 57 of the Commonwealth Electoral Act 1905

4314 As a corollary the deposit to be paid by the petitioner as security for costs was held at a low level in the expectation that court costs for the respondents would be contained by the limitation on legal representation The further trade-off was that by holding the deposit to a low level access to the court was not limited for the impecunious petitioner with a genuine dispute Section 195 of the Commonwealth

Electoral Act 1902 provided that the deposit for security for costs should be 50 pounds That amount has not substantially changed in the intervening 90 years and now stands at $100 in section 356 of the Act

4315 Despite the concerns of the early legislators to protect elected parliamentarians from wealthy and vexatious petitioners modern day realities are that respondents will rarely appear without legal representation and more often than not will hire a Queens Counsel whose fee is guaranteed from party or other sympathetic resources It is also unlikely that the court would decline to consent to such representation if there were to be any objection from the petitioner This suggests that section 370 of the Act limiting legal representation no longer serves any practical purpose

4316 The provision does not appear in any way to either advantage or disadvantage the petitioner The impecunious petitioner by obtaining waivers on fees and by appearing without legal representation has ready access to the court The problem that Justice Gaudron has highlighted is that petitioners are encouraged by the apparent limitation on legal representation to bring disputes to court which might never have survived proper legal advice

4317 If section 370 were to be deleted from the legislation then the logical nexus between that provision and section 356 which sets a low $100 as the petitionerrsquos deposit for security for costs would fall away However there are other provisions relating to costs in the Act sections 360 (1)(ix) 360(1)(4) 372 and 373 for example which would need to be considered as part of any general review of the issue of costs and legal representation that the Committee might recommend

Attachment 4

Extract from AEC submission No 96 of 23 October 1996 on Federal Court

61 During the course of the proceedings it appeared as if evidentiary matters might have to be resolved in the petition by the examination of declaration envelopes and the calling of witnesses This could have involved up to 1594 individual investigations The High Court sitting as the Court of Disputed Returns has made it clear on at least one recent occasion (the Webster v Deahm petition in 1993) that it is not amendable to dealing with such a load and would if such evidentiary matters were to be pressed refer the petition to the relevant State Supreme Court This option is available to the Court under section 354 of the CEA

62 However it became clear during proceedings in this petition that there was a preference by the Bench for the questions of law to be resolved by the High Court with only questions of evidence being determined by the Supreme Court rather than the whole of the petition being heard and determined by the Supreme Court It was also the preferred position of the AEC that if a petition were to be split and any questions of evidence were to be remitted to the Supreme Court then the evidentiary determinations should be sent back to the High Court for final decision on the appropriate relief

63 It is the view of the AEC that the High Court and not a Supreme Court of a State should make final determinations on the proper outcome of challenges to a federal election for example whether or not a federal election should be voided The interpretation of section 354 of the CEA by the Chief Justice on 15 August 1996 means that it is not possible for the evidentiary and determinative matters in a petition to be ldquosplitrdquo between the High Court and a Supreme Court under the legislation as it currently standshellip

73 The Snowdon petition also gave rise to a procedural issue about the ldquosplittingrdquo of petitions and the remitting of questions of evidence from the High Court to inferior courts

The AEC recommends that section 354 of the CEA be amended to enable the High Court to remit aspects of a petition to a Supreme Court but so that the High Court retains final jurisdiction on relief

Attachment 5

McClure v AEC (1999) 73 ALJR 1086

See attached

Attachment 3

Extract from AEC submission No124 of 15 November 1993 re costs

432 During the hearing on 1 October 1993 on the question of costs Justice Gaudron made a number of observations on the ease with which election petitions which may have no legal merit can be lodged with the Court of Disputed Returns under the current provisions of the Commonwealth Electoral Act 1918 For example on page 54 of the transcript Justice Gaudron said the following

The Act is by no means of model of clarity as to who can bring petitions it sets it up so that a person can come without the benefit of legal advice which might deflect it In fact it discourages positively prohibits legal representation without leave so that the Act is virtually inviting people to bring petitions which have not had the benefit of legal analysis

433 Her Honour then appeared to agree with the proposition of Mr Gageler for the Commonwealth that whilst the $100 security for costs required under section 356 of the Act in order to lodge a petition may have been a deterrent to vexatious or frivolous petitioners when it was first legislated in 1902 (when it was 50 pounds) it can hardly be regarded as a meaningful deterrent these days

434 In discussing with Mr Gageler the scheme of the Act which appears to encourage unimpeded access to the Court of Disputed Returns by any and all petitioners Justice Gaudron said at page 55 of the transcript

Virtually unimpeded access and as you tell me five out of six [of the petitions] have failed One well knows that some of the grounds that have been advanced in these petitions - and I put Mr Hudsons to one side - have been grounds that one would think would not have survived legal advice

435 In reference to section 370 of the Act which provides that no party to the petition shall except by consent of all parties or by leave of the Court be represented by counsel or solicitor [and] in no case shall more than one counsel or solicitor appear on behalf of any party Justice Gaudron went on to say

But very rarely do you have a provision such as this - you do in some Acts but not commonly - no legal representation except by leave So what you are doing is you are in fact encouraging people to come to the Court with arguments that do not necessarily have a basis in law

436 And finally on page 58 of the transcript Justice Gaudron said

I was hoping maybe that the legislature might see fit to do something with respect to the provisions as they stand It is by no means a model of clarity is it that part of the Act

437 These comments from the Bench are directed to petitions that ldquowould not have survived legal advicerdquo that is vexatious andor frivolous petitions and not to the Hudson petition in particular as is obvious from Justice Gaudronrsquos comment that the ease of access to the Court for petitioners of limited means such as Mr Hudson is ldquocommendablerdquo (see paragraph 427 above)

438 If any review of the provisions of the Act relating to costs and legal representation were to be undertaken it would need to be in the context of the following considerations

439 For the average petitioner it costs a total of $900 in set fees and charges to lodge a petition made up of the $100 deposit as security for costs under section 356 of the Commonwealth Electoral Act 1918 and the $300 filing fee and the $500 hearing fee under regulations 4(1) and 5(1) respectively of the High Court of Australia (Fees) Regulations If a petitioner can provide a health care card or a health benefit card or provide other reasons acceptable to the High Court Registry that indicate financial constraints then the High Court Regulations allow the $800 High Court fees to be waived There is no waiver under the Commonwealth Electoral Act 1918 for the $100 deposit as security for costs

4310 In addition to these set fees and the deposit under Order 68 rule 3 of the High Court Rules forthwith after filing a petition the petitioner must arrange for the petition to be published in the Commonwealth Gazette and the relevant State Gazette and in the case of an election for the House of Representatives the petitioner must publish a notice giving details of the petition in a newspaper circulating in the relevant electoral Division Further under Order 68 rule 5 of the Rules the petitioner must 28 days after the filing of the petition serve a copy of the petition upon every person whose election or return is disputed by the petition These requirements under the High Court Rules for publication and service can clearly add up to a considerable financial burden to the petitioner

4311 The Commission has no difficulty with the fees service and advertising requirements of the High Court Rules in so far as they apply to petitions disputing elections The Commission does however agree with Justice Gaudron that the provisions in the Commonwealth Electoral Act 1918 relating to costs and legal representation are dated and inconsistent

4312 The history of the introduction in 1902 to 1905 of the provisions of the Commonwealth Electoral Act 1918 relating to costs and legal representation in the Court of Disputed Returns will not be canvassed in detail in this Submission However it is worth noting that the two Houses of Parliament were divided at that time over whether to legislate for a non-judicial parliamentary Elections and Qualifications Committee or a Court of Disputed Returns with full judicial powers to settle election disputes The primary cause of concern was the high cost of legal fees for respondents required to defend their election before a court against wealthy and possibly vexatious petitioners

4313 In the outcome a Court of Disputed Returns was agreed upon as being more impartial in the settling of election disputes than a Parliamentary committee However as a trade-off a provision was inserted in the Act limiting legal representation in order to protect elected parliamentarians from the costs of vexatious challenges Section 370 of the Commonwealth Electoral Act 1918 which provides that except by consent of all parties or by leave of the Court no party shall be represented by counsel or solicitor was therefore inserted by section 57 of the Commonwealth Electoral Act 1905

4314 As a corollary the deposit to be paid by the petitioner as security for costs was held at a low level in the expectation that court costs for the respondents would be contained by the limitation on legal representation The further trade-off was that by holding the deposit to a low level access to the court was not limited for the impecunious petitioner with a genuine dispute Section 195 of the Commonwealth

Electoral Act 1902 provided that the deposit for security for costs should be 50 pounds That amount has not substantially changed in the intervening 90 years and now stands at $100 in section 356 of the Act

4315 Despite the concerns of the early legislators to protect elected parliamentarians from wealthy and vexatious petitioners modern day realities are that respondents will rarely appear without legal representation and more often than not will hire a Queens Counsel whose fee is guaranteed from party or other sympathetic resources It is also unlikely that the court would decline to consent to such representation if there were to be any objection from the petitioner This suggests that section 370 of the Act limiting legal representation no longer serves any practical purpose

4316 The provision does not appear in any way to either advantage or disadvantage the petitioner The impecunious petitioner by obtaining waivers on fees and by appearing without legal representation has ready access to the court The problem that Justice Gaudron has highlighted is that petitioners are encouraged by the apparent limitation on legal representation to bring disputes to court which might never have survived proper legal advice

4317 If section 370 were to be deleted from the legislation then the logical nexus between that provision and section 356 which sets a low $100 as the petitionerrsquos deposit for security for costs would fall away However there are other provisions relating to costs in the Act sections 360 (1)(ix) 360(1)(4) 372 and 373 for example which would need to be considered as part of any general review of the issue of costs and legal representation that the Committee might recommend

Attachment 4

Extract from AEC submission No 96 of 23 October 1996 on Federal Court

61 During the course of the proceedings it appeared as if evidentiary matters might have to be resolved in the petition by the examination of declaration envelopes and the calling of witnesses This could have involved up to 1594 individual investigations The High Court sitting as the Court of Disputed Returns has made it clear on at least one recent occasion (the Webster v Deahm petition in 1993) that it is not amendable to dealing with such a load and would if such evidentiary matters were to be pressed refer the petition to the relevant State Supreme Court This option is available to the Court under section 354 of the CEA

62 However it became clear during proceedings in this petition that there was a preference by the Bench for the questions of law to be resolved by the High Court with only questions of evidence being determined by the Supreme Court rather than the whole of the petition being heard and determined by the Supreme Court It was also the preferred position of the AEC that if a petition were to be split and any questions of evidence were to be remitted to the Supreme Court then the evidentiary determinations should be sent back to the High Court for final decision on the appropriate relief

63 It is the view of the AEC that the High Court and not a Supreme Court of a State should make final determinations on the proper outcome of challenges to a federal election for example whether or not a federal election should be voided The interpretation of section 354 of the CEA by the Chief Justice on 15 August 1996 means that it is not possible for the evidentiary and determinative matters in a petition to be ldquosplitrdquo between the High Court and a Supreme Court under the legislation as it currently standshellip

73 The Snowdon petition also gave rise to a procedural issue about the ldquosplittingrdquo of petitions and the remitting of questions of evidence from the High Court to inferior courts

The AEC recommends that section 354 of the CEA be amended to enable the High Court to remit aspects of a petition to a Supreme Court but so that the High Court retains final jurisdiction on relief

Attachment 5

McClure v AEC (1999) 73 ALJR 1086

See attached

438 If any review of the provisions of the Act relating to costs and legal representation were to be undertaken it would need to be in the context of the following considerations

439 For the average petitioner it costs a total of $900 in set fees and charges to lodge a petition made up of the $100 deposit as security for costs under section 356 of the Commonwealth Electoral Act 1918 and the $300 filing fee and the $500 hearing fee under regulations 4(1) and 5(1) respectively of the High Court of Australia (Fees) Regulations If a petitioner can provide a health care card or a health benefit card or provide other reasons acceptable to the High Court Registry that indicate financial constraints then the High Court Regulations allow the $800 High Court fees to be waived There is no waiver under the Commonwealth Electoral Act 1918 for the $100 deposit as security for costs

4310 In addition to these set fees and the deposit under Order 68 rule 3 of the High Court Rules forthwith after filing a petition the petitioner must arrange for the petition to be published in the Commonwealth Gazette and the relevant State Gazette and in the case of an election for the House of Representatives the petitioner must publish a notice giving details of the petition in a newspaper circulating in the relevant electoral Division Further under Order 68 rule 5 of the Rules the petitioner must 28 days after the filing of the petition serve a copy of the petition upon every person whose election or return is disputed by the petition These requirements under the High Court Rules for publication and service can clearly add up to a considerable financial burden to the petitioner

4311 The Commission has no difficulty with the fees service and advertising requirements of the High Court Rules in so far as they apply to petitions disputing elections The Commission does however agree with Justice Gaudron that the provisions in the Commonwealth Electoral Act 1918 relating to costs and legal representation are dated and inconsistent

4312 The history of the introduction in 1902 to 1905 of the provisions of the Commonwealth Electoral Act 1918 relating to costs and legal representation in the Court of Disputed Returns will not be canvassed in detail in this Submission However it is worth noting that the two Houses of Parliament were divided at that time over whether to legislate for a non-judicial parliamentary Elections and Qualifications Committee or a Court of Disputed Returns with full judicial powers to settle election disputes The primary cause of concern was the high cost of legal fees for respondents required to defend their election before a court against wealthy and possibly vexatious petitioners

4313 In the outcome a Court of Disputed Returns was agreed upon as being more impartial in the settling of election disputes than a Parliamentary committee However as a trade-off a provision was inserted in the Act limiting legal representation in order to protect elected parliamentarians from the costs of vexatious challenges Section 370 of the Commonwealth Electoral Act 1918 which provides that except by consent of all parties or by leave of the Court no party shall be represented by counsel or solicitor was therefore inserted by section 57 of the Commonwealth Electoral Act 1905

4314 As a corollary the deposit to be paid by the petitioner as security for costs was held at a low level in the expectation that court costs for the respondents would be contained by the limitation on legal representation The further trade-off was that by holding the deposit to a low level access to the court was not limited for the impecunious petitioner with a genuine dispute Section 195 of the Commonwealth

Electoral Act 1902 provided that the deposit for security for costs should be 50 pounds That amount has not substantially changed in the intervening 90 years and now stands at $100 in section 356 of the Act

4315 Despite the concerns of the early legislators to protect elected parliamentarians from wealthy and vexatious petitioners modern day realities are that respondents will rarely appear without legal representation and more often than not will hire a Queens Counsel whose fee is guaranteed from party or other sympathetic resources It is also unlikely that the court would decline to consent to such representation if there were to be any objection from the petitioner This suggests that section 370 of the Act limiting legal representation no longer serves any practical purpose

4316 The provision does not appear in any way to either advantage or disadvantage the petitioner The impecunious petitioner by obtaining waivers on fees and by appearing without legal representation has ready access to the court The problem that Justice Gaudron has highlighted is that petitioners are encouraged by the apparent limitation on legal representation to bring disputes to court which might never have survived proper legal advice

4317 If section 370 were to be deleted from the legislation then the logical nexus between that provision and section 356 which sets a low $100 as the petitionerrsquos deposit for security for costs would fall away However there are other provisions relating to costs in the Act sections 360 (1)(ix) 360(1)(4) 372 and 373 for example which would need to be considered as part of any general review of the issue of costs and legal representation that the Committee might recommend

Attachment 4

Extract from AEC submission No 96 of 23 October 1996 on Federal Court

61 During the course of the proceedings it appeared as if evidentiary matters might have to be resolved in the petition by the examination of declaration envelopes and the calling of witnesses This could have involved up to 1594 individual investigations The High Court sitting as the Court of Disputed Returns has made it clear on at least one recent occasion (the Webster v Deahm petition in 1993) that it is not amendable to dealing with such a load and would if such evidentiary matters were to be pressed refer the petition to the relevant State Supreme Court This option is available to the Court under section 354 of the CEA

62 However it became clear during proceedings in this petition that there was a preference by the Bench for the questions of law to be resolved by the High Court with only questions of evidence being determined by the Supreme Court rather than the whole of the petition being heard and determined by the Supreme Court It was also the preferred position of the AEC that if a petition were to be split and any questions of evidence were to be remitted to the Supreme Court then the evidentiary determinations should be sent back to the High Court for final decision on the appropriate relief

63 It is the view of the AEC that the High Court and not a Supreme Court of a State should make final determinations on the proper outcome of challenges to a federal election for example whether or not a federal election should be voided The interpretation of section 354 of the CEA by the Chief Justice on 15 August 1996 means that it is not possible for the evidentiary and determinative matters in a petition to be ldquosplitrdquo between the High Court and a Supreme Court under the legislation as it currently standshellip

73 The Snowdon petition also gave rise to a procedural issue about the ldquosplittingrdquo of petitions and the remitting of questions of evidence from the High Court to inferior courts

The AEC recommends that section 354 of the CEA be amended to enable the High Court to remit aspects of a petition to a Supreme Court but so that the High Court retains final jurisdiction on relief

Attachment 5

McClure v AEC (1999) 73 ALJR 1086

See attached

Electoral Act 1902 provided that the deposit for security for costs should be 50 pounds That amount has not substantially changed in the intervening 90 years and now stands at $100 in section 356 of the Act

4315 Despite the concerns of the early legislators to protect elected parliamentarians from wealthy and vexatious petitioners modern day realities are that respondents will rarely appear without legal representation and more often than not will hire a Queens Counsel whose fee is guaranteed from party or other sympathetic resources It is also unlikely that the court would decline to consent to such representation if there were to be any objection from the petitioner This suggests that section 370 of the Act limiting legal representation no longer serves any practical purpose

4316 The provision does not appear in any way to either advantage or disadvantage the petitioner The impecunious petitioner by obtaining waivers on fees and by appearing without legal representation has ready access to the court The problem that Justice Gaudron has highlighted is that petitioners are encouraged by the apparent limitation on legal representation to bring disputes to court which might never have survived proper legal advice

4317 If section 370 were to be deleted from the legislation then the logical nexus between that provision and section 356 which sets a low $100 as the petitionerrsquos deposit for security for costs would fall away However there are other provisions relating to costs in the Act sections 360 (1)(ix) 360(1)(4) 372 and 373 for example which would need to be considered as part of any general review of the issue of costs and legal representation that the Committee might recommend

Attachment 4

Extract from AEC submission No 96 of 23 October 1996 on Federal Court

61 During the course of the proceedings it appeared as if evidentiary matters might have to be resolved in the petition by the examination of declaration envelopes and the calling of witnesses This could have involved up to 1594 individual investigations The High Court sitting as the Court of Disputed Returns has made it clear on at least one recent occasion (the Webster v Deahm petition in 1993) that it is not amendable to dealing with such a load and would if such evidentiary matters were to be pressed refer the petition to the relevant State Supreme Court This option is available to the Court under section 354 of the CEA

62 However it became clear during proceedings in this petition that there was a preference by the Bench for the questions of law to be resolved by the High Court with only questions of evidence being determined by the Supreme Court rather than the whole of the petition being heard and determined by the Supreme Court It was also the preferred position of the AEC that if a petition were to be split and any questions of evidence were to be remitted to the Supreme Court then the evidentiary determinations should be sent back to the High Court for final decision on the appropriate relief

63 It is the view of the AEC that the High Court and not a Supreme Court of a State should make final determinations on the proper outcome of challenges to a federal election for example whether or not a federal election should be voided The interpretation of section 354 of the CEA by the Chief Justice on 15 August 1996 means that it is not possible for the evidentiary and determinative matters in a petition to be ldquosplitrdquo between the High Court and a Supreme Court under the legislation as it currently standshellip

73 The Snowdon petition also gave rise to a procedural issue about the ldquosplittingrdquo of petitions and the remitting of questions of evidence from the High Court to inferior courts

The AEC recommends that section 354 of the CEA be amended to enable the High Court to remit aspects of a petition to a Supreme Court but so that the High Court retains final jurisdiction on relief

Attachment 5

McClure v AEC (1999) 73 ALJR 1086

See attached

Attachment 4

Extract from AEC submission No 96 of 23 October 1996 on Federal Court

61 During the course of the proceedings it appeared as if evidentiary matters might have to be resolved in the petition by the examination of declaration envelopes and the calling of witnesses This could have involved up to 1594 individual investigations The High Court sitting as the Court of Disputed Returns has made it clear on at least one recent occasion (the Webster v Deahm petition in 1993) that it is not amendable to dealing with such a load and would if such evidentiary matters were to be pressed refer the petition to the relevant State Supreme Court This option is available to the Court under section 354 of the CEA

62 However it became clear during proceedings in this petition that there was a preference by the Bench for the questions of law to be resolved by the High Court with only questions of evidence being determined by the Supreme Court rather than the whole of the petition being heard and determined by the Supreme Court It was also the preferred position of the AEC that if a petition were to be split and any questions of evidence were to be remitted to the Supreme Court then the evidentiary determinations should be sent back to the High Court for final decision on the appropriate relief

63 It is the view of the AEC that the High Court and not a Supreme Court of a State should make final determinations on the proper outcome of challenges to a federal election for example whether or not a federal election should be voided The interpretation of section 354 of the CEA by the Chief Justice on 15 August 1996 means that it is not possible for the evidentiary and determinative matters in a petition to be ldquosplitrdquo between the High Court and a Supreme Court under the legislation as it currently standshellip

73 The Snowdon petition also gave rise to a procedural issue about the ldquosplittingrdquo of petitions and the remitting of questions of evidence from the High Court to inferior courts

The AEC recommends that section 354 of the CEA be amended to enable the High Court to remit aspects of a petition to a Supreme Court but so that the High Court retains final jurisdiction on relief

Attachment 5

McClure v AEC (1999) 73 ALJR 1086

See attached

Attachment 5

McClure v AEC (1999) 73 ALJR 1086

See attached